Las Vegas Sun

December 14, 2017

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Political Advertising:

Miller attempting to take ‘magic’ out of campaign ads


Sam Morris / Las Vegas Sun

Secretary of State Ross Miller shakes Assemblyman John Oceguera’s hand while handing him the gavel after Oceguera was named Assembly Speaker during the first day of the 2011 legislative session Monday, February 7, 2011 in Carson City.

Skip Daly chuckled the first time he saw the website erected last year to anonymously attack his credibility during the Democratic assemblyman’s campaign.

“It was just so over the top, of course, no one would believe it,” Daly said. was filled with ugly clichés about burying bodies in the desert and sending jobs to brothers-in-law.

It was an attempt to mock Daly, who as secretary-treasurer of the Laborers Union in Northern Nevada is an actual union boss.

Daly didn’t laugh for long.

“I sat back and said, ‘You know, this really isn’t very funny. And it’s not true,’” he said. “But it was a shadow group. I didn’t have anybody I could confront. And that’s not fair.”

Daly filed a complaint with the Secretary of State’s office but quickly found there was little that could be done to discover the identity of who had funded and created the website, which is still up .

“That just dumbfounds me,” Daly said.

As Nevada heads into another election year, an onslaught of such third-party campaign ads — many of them paid for by anonymous donors — are sure to come, particularly in the presidential and U.S. Senate races as federal third-party groups ratchet up fundraising in the wake of court decisions loosening campaign finance restrictions.

But on a state level, Secretary of State Ross Miller has been fighting anonymous third-party groups — taking some to court, investigating complaints made to his office and successfully pursuing legislation that will make it easier to compel such groups to disclose where they get their money and how they spend it.

Thanks to a bill sponsored by Daly, the Legislature gave Miller limited subpoena power to obtain documents from Internet hosts and the post office to help determine who’s behind the anonymous groups.

“Since I’ve been in office, the primary complaint every election is that there is not enough disclosure,” Miller said. “People see the attack ads but don’t know who is paying for them. I promised I would go after those groups, and that’s what we are doing.”

Elected officials are often reticent to adopt tougher reporting requirements that affect themselves. Miller — and his predecessor, U.S. Sen. Dean Heller — repeatedly failed to pass laws that would have required greater campaign finance transparency.

But this year lawmakers jumped at the chance to make life more difficult for third-party groups by passing Miller’s omnibus campaign finance reform package.

Under the new law, the groups can’t hide behind the so-called magic-words test that has allowed some campaigners to dodge disclosure laws. In the past, if an attack ad didn’t use words like “vote for” or “defeat” in reference to a particular candidate, the group could claim it was educating voters and not expressly advocating for a candidate.

Under the new law, if there can be “no other reasonable interpretation” than the ad seeks the election or defeat of a candidate, the producer must disclose the expense and source of the funding.

Miller had been operating under that premise even before lawmakers passed the new law. Recently, Miller has sought civil complaints against conservative operative Chuck Muth, who funded a mailer attacking Assembly Speaker John Oceguera in 2010, and car dealer Joe Scala, who bought television ads attacking Steve Ross in this year’s Las Vegas mayoral race.

But the old law was vague enough to land Miller before the Nevada Supreme Court.

Miller’s lawsuit against Virginia-based Alliance for America’s Future, which paid for television ads supporting Gov. Brian Sandoval’s primary challenge of former Gov. Jim Gibbons, is pending before the court.

Miller won an injunction from district court forcing the alliance to cease campaign advertising in Nevada until it registered as a political action committee (PAC) and disclosed its donors. The alliance refused and appealed to the Supreme Court, arguing that since it didn’t use the “magic words” it couldn’t be compelled to reveal its donors.

Political donors have reasons to want to keep secret the sources of their money. In the case of Alliance for America’s Future, Sandoval’s Republican supporters were able to offer funding without risking reprisal for supporting a primary challenge against a sitting governor.

That desire is intense enough that the alliance chose to continue the legal fight even after the primary election was over and Gibbons unseated.

Scott Scherer, a Carson City lawyer who helped argue the case for the alliance, said courts generally have held that contributions to specific candidates must be disclosed because of the potential for corruption. But third-party groups that don’t coordinate with the candidate haven’t been held to as strict a standard.

“If you go all the way back to the Federalist Papers, they were anonymous,” Scherer said, noting he was not speaking on behalf of the alliance. “There is a history in this country of political speech being made without having to necessarily disclose who is really behind that speech, especially when they are afraid of the government. But certainly there is a balance to be struck.”

Under the old Nevada law, it wasn’t clear when third-party groups were expected to register as a PAC subject to disclosure laws. Donors have a right to know when their names will be public, Scherer said.

Miller’s aggressive approach hasn’t always won him praise. Most of the complaints his office has investigated were against Republican or conservative groups, prompting accusations that they’re politically motivated.

Muth, for example, chalked up the complaint against him to a “witch hunt.”

Miller said his office investigates all complaints regardless of party affiliation.

Muth noted that perhaps Democrats and their supporters are more aggressive about filing complaints than Republicans and their supporters.

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