Newspaper column: Court need only read the Nevada Constitution to find grounds for free speech

It drives me to distraction when smart lawyers try to peel away tiny layers of the law with a scalpel instead of bashing it with a sledgehammer.

That’s what the attorney for Citizen Outreach did recently before the Nevada Supreme Court. He argued that fliers sent out by the group in 2010 did not trip over the state law requiring “express advocacy” groups to file spending reports and disclose donors, as recounted in this week’s newspaper column available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

Attorney Allen Dickerson said fliers critical of then-Assemblyman/firefighter John Oceguera as a double-dipper and big spender did not contain the “magic words” that would trigger a legal requirement for disclosure. The “magic words” concept comes from the U.S. Supreme Court case of Buckley v. Valeo that held disclosure could be required if words such as “vote for” or “elect,” “support,” “cast your ballot for” are used in the message.

Deputy Attorney General Kevin Benson, suing on behalf of Secretary of State Ross Miller, said the state law doesn’t require the use of “magic words” and the entire context should be examined for intent.

Nevada Revised Statute 294A.140 requires anyone who spends a certain amount of money for or against a candidate to file with the secretary of state the names and addresses of contributors.

The First Amendment says Congress shall make no law abridging free speech and free press. The 14th Amendment extends this prohibition to the states.

Thus, Buckely v. Valeo is the Supreme Court’s interpretation of how political speech can be abridged by requiring paperwork and forced disclosure of donors who would otherwise choose to remain anonymous.

But this is Nevada and we have our own Constitution in which Article 1, Section 9 says: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges. Buckley v. Valeo is irrelevant.

You don’t need to turn Talmudic scholar and pore over the nuances for just how the Buckley court conjured up from the bottom of a top hat a handful of “magic words” that may be abridged under the First Amendment, any more than you would have to turn to U.S. high court rulings on the 16th Amendment to interpret how the Nevada Constitution bans an income tax.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint — barrier, check, coercion, compulsion, constraint, control, curb, deterrence, duress, force, inhibition, limitation, manacle, prevention, prohibition, repression, restriction, suppression, etc.

This is not the first time free-speech-hating Ross Miller, who just lost an election bid for state attorney general of all things, has had groups prosecuted for speaking up.

Back in 2010 the target of the thought police was a Virginia-based organization called Alliance for America’s Future, which was running ads supportive of the candidacy of Republican gubernatorial candidate Brian Sandoval.

A sympathetic Carson City judge shook out the Bill of Rights and discovered within its folds some brand new rights never dreamt of by the Founders. Judge James E. Wilson Jr. discovered the inalienable right to not be duped.

“Nevadans have a right to know who is behind election advertising,” Judge Wilson explained to us peons who were under the mistaken impression that the Federalist and Anti-Federalist papers, as well as “Common Sense,” were penned anonymously. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising. Compensatory relief cannot compensate for this type of harm.”

Apparently there is a right to drag more information out of a speaker than the speaker wishes to convey, because voters are too stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

The Nevada Supreme Court will rule later on the Citizen Outreach overreach by Miller, but on what grounds? Will they rule for liberty or restraint and abridgement?

Pundit’s ties to Miller family belatedly recounted

Laxalt and Miller before a debate. (AP photo)

In case you missed it, as I most certainly did, a Watchdog.org account shortly before the election recounted ties between television pundit Jon Ralston and the family of attorney general candidate Democrat Ross Miller, who surprisingly lost to Adam Laxalt Tuesday.

The story by Ciara Matthews points out that Ralston, who frequently boasted of his role in reporting a leaked “evaluation document” from Laxalt’s former law firm calling him a train wreck and unsuited to practice law, was prominently mentioned by Ross Miller’s father, former Gov. Bob Miller, in the acknowledgements section of his book, “Son of a Gambling Man.”

Sounds like Ralston practically ghost wrote the book:

From Bob Miller’s autobiography

Count the glowing adjectives.

I’m told the book breezes past some of the former governor’s relationships with less than savory Las Vegas characters of that era.

The Watchdog report is full of interesting links and twitter feeds.

Rural Nevada voters help paint the state red

It may have been a Republican rout across Nevada,  but it was voters in rural counties who turned out in greater numbers and helped turn the state Republican red.

While turnout in Clark County, where more than two-thirds of the state’s population resides, was only 41 percent, turnout in many rural counties topped 60 percent, hitting 83 percent in Lander and 80 percent Eureka.

The dreaded mining tax constitutional amendment, Question 2, which would have removed the 5 percent cap on the net proceeds tax on minerals, went down to defeat by less than a percentage point, or 3,300 votes. The measure won with 56 percent of the vote in Clark County, where the state’s largest newspaper, the Review-Journal, endorsed passage of the amendment, but was defeated by huge margins in the rural counties, where most newspapers editorially opposed the change. Voters opposed the measure by more than 80 percent in Elko, Esmeralda, Eureka, Lander and White Pine counties.

Brian Sandoval

The rural counties also played a role in the Republican sweep of statewide offices on the ballot — Brian Sandoval for governor, Mark Hutchison for lieutenant governor, Adam Laxalt for attorney general, Barbara Cegavske for secretary of state, Ron Knecht for controller and Dan Schwartz for treasurer.

Sandoval, Hutchison, Schwartz and Knecht won in every county, despite the fact Schwartz’s opponent was endorsed by the Reno and Las Vegas newspapers and despite the fact Knecht’s opponent for backed by the Reno paper.

Adam Laxalt

Barbara Cegavske

The biggest difference made by the rurals may have been the somewhat surprising win of newcomer Laxalt over 12-year Secretary of State Ross Miller by less than 1 percentage point statewide. Democrat Miller carried the endorsement of the Las Vegas and Reno newspapers and won in Clark by 6 points and in Washoe by less than 2 points. Laxalt won most of the others counties with double-digit margins, by more than 52 points in Eureka, by 44 points in Lincoln and Elko counties.

Cegavske won in every county expect Washoe and Mineral.

The Battle Born Media newspapers — The Ely Times, Lincoln County Record, Eureka Sentinel, Mineral County Independent-News and Mesquite Local News — endorsed the Republican slate, except for Sandoval whose race was never in doubt.

Dan Schwartz

Cresent Hardy

Another race that many considered an upset was determined by rural voters — Congressional District 4, in which Democrat freshman incumbent Steven Horsford was defeated by Mesquite Republican Cresent Hardy by nearly 3 percentage points.

In the portion of Clark County in the district Horsford, who was endorsed by the Las Vegas newspaper, won by less than 2 points. Hardy carried Mineral by only 1 point, but won by double digits in the rest of the counties — 46 points in Esmeralda, 51 in Lincoln, 37 in Lyon, 21 in Nye and 30 in White Pine.

In a reversal of fortunes, Republicans now control majorities in both the state Assembly and Senate, taking 25 Assembly seats and leaving Democrats with just 17. All the Democrats in the Legislature are from either Clark or Washoe. None is from a rural county.

So, yes, your votes counted.

Ron Knecht

We don’t need no U.S. Supreme Court quibbling, we’ve got the Nevada Constitution, Mr. Miller

It drives me to distraction when smart lawyers try to peel away tiny layers of the law with a scalpel instead of bashing it with a sledgehammer.

It’s like quibbling over the infield fly rule instead arguing that the game you’re playing is football.

That’s what the attorney for Citizen Outreach did Monday before the Nevada Supreme Court. He argued that fliers sent out by the group in 2010 did not trip over the state law requiring “express advocacy” groups to file sending reports and disclose donors.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

Attorney Allen Dickerson said fliers critical of then-Assemblyman/firefighter John Oceguera as a double-dipper and big spender did not contain the “magic words” that would trigger a legal requirement for disclosure. The “magic words” concept comes from the U.S. Supreme Court case of Buckley v. Valeo that held disclosure could be required if words such as “vote for” or “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject” are used in the message.

Deputy Attorney General Kevin Benson, suing on behalf of Secretary of State Ross Miller, said the state law doesn’t require the use of “magic words” to trigger disclosure. He said the entire context of the communications should be examined to uncover intent.

NRS 294A.140 states that: “Every committee for political action, political party and committee sponsored by a political party which receives contributions in excess of $1,000 or makes an expenditure for or against a candidate for office or a group of such candidates. …” must file “The name and address of the contributor and the date on which the contribution was received must be included on the report for each contribution in excess of $1,000 and contributions which a contributor has made cumulatively in excess of $1,000 since the beginning of the current reporting period.”

The First Amendment says Congress shall make no law abridging free speech and free press. The 14th Amendment extends this prohibition to the states.

Thus, Buckely v. Valeo is the Supreme Court’s interpretation of how political speech can be abridged by requiring paperwork and forced disclosure of donors who would otherwise choose to remain anonymous.

The problem is: This is Nevada.

The Nevada Constitution in Article 1, Section 9 says: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges. End of argument. Buckley v. Valeo be damned.

You don’t need to turn Talmudic scholar and pore over the nuances for just how the Buckley court conjured up from the bottom of a top hat a handful of “magic words” that may be abridged under the First Amendment, any more than you would have to turn to U.S. high court rulings on the 16th Amendment to interpret how the Nevada Constitution bans an income tax.

But for the sake of argument, and that is what this is, the better U.S. Supreme Court case to cite, if you must, would have been McIntyre v. Ohio.

In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets.

In declaring the Ohio law unconstitutional, Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

But that would be gilding the lily.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine is surely a restraint in any dictionary — arrest, barrier, bit, bondage, check, coercion, confinement, compulsion, constraint, control, curb, deterrence, discipline, duress, force, incarceration, inhibition, leash, limitation, manacle, order, prevention, prohibition, repression, restriction, shackle, suppression, tabu, trammel, etc.

This is not the first time free speech hating Ross Miller, who is running for attorney general of all things, has had groups prosecuted for speaking up.

Back in 2010 the target of the thought police was a Virginia-based organization called Alliance for America’s Future, which was running ads supportive of the candidacy of Republican gubernatorial candidate Brian Sandoval.

A sympathetic Carson City judge shook out the Bill of Rights and discovered within its folds some brand new rights never dreamt of by the Founders. As I wrote at the time, Judge James E. Wilson Jr. discovered the inalienable to not be duped.

“Nevadans have a right to know who is behind election advertising,” Judge Wilson explained to us peons who were under the mistaken impression that the Federalist and Anti-Federalist papers, as well as “Common Sense,” were penned anonymously. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising.  Compensatory relief cannot compensate for this type of harm.”

The judge flippantly dismissed all of the alliance’s arguments thusly:

“The first issue is whether the advertisement advocates expressly, the election of Brian Sandoval. It does. The second issue is whether the Secretary has established the necessary elements for a preliminary injunction. It has. The third issue is whether Alliance has shown NRS 294A.0055 is unconstitutional. It has not. The fourth issue is whether Alliance’s First Amendment rights are unconstitutionally chilled. They are not.”

Voters are simply incapable of judging for themselves whether countenance speech whose source is unspecified. If you need a permit to do something, it is not a right.

“The ad constitutes express advocacy or the functional equivalent of express advocacy, because it cannot be reasonably interpreted as anything other than an appeal to support Brian Sandoval,” Wilson wrote, paying no heed to U.S. Supreme Court Justice Clarence Thomas’ dissent in Citizens United v. FEC.

Justice Thomas exposed the illogical nature of the court’s half measure when it comes to free speech by non-candidates and their right to do so anonymously:

“Irony aside, the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, (the law) will chill protected speech because — as California voters can attest — ‘the advent of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the information needed’ to intimidate and retaliate against their foes. … Thus, ‘disclosure permits citizens … to react to the speech of [their political opponents] in a proper’ — or undeniably improper — ‘way’ long before a plaintiff could prevail on an as-applied challenge. …

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’ … Accordingly, I respectfully dissent …”

The Nevada Supreme Court will rule later on the Citizen Outreach overreach by Miller, but on what grounds? Will they rule for liberty or restraint and abridgement?

(For a thorough discussion of this topic, read Steven Miller’s three-part series, ”R.I.P., Publius,” at Nevada Policy Research Institute — Part I, Part II, Part III.)

 

 

 

 

 

 

Would luring Tesla ‘gigafactory’ require an unconstitutional outlay of tax money?

Largely overlooked during all the congratulatory back slapping that came with the news that Tesla Motors had built an earthen pad in an industrial park east of Sparks for its new  $5 billion lithium-ion battery “gigafactory” that would employ as many as 6,500 workers was a statement by Tesla CEO Elon Musk about what he expects the state getting the plant to shell out.

“Consistent with out strategy to identify and break ground on multiple sites, we continue to evaluate other locations in Arizona, California, New Mexico, and Texas,” Musk wrote at the time about the Nevada site, keeping his suitors guessing.

But in a telephone conference call on July 31 about company plans, Musk, 43, said of the $5 billion plant: “Of that number, we see Tesla probably providing 40 to 50 percent of the total; Panasonic probably about 30 to 40 percent; the state maybe 10 percent; and other industrial partners maybe 10 to 15 percent, depending on how vertical we go with the factory.”

Water is sprayed on a site for a potential Tesla Motors battery factory. (RGJ photo )

That 10 percent from “the state” could be $500 million or more.

Tesla already has received a federal loan guarantee for $465 million, though it has lost or written off more than $1 billion. Musk’s SpaceX gets $1 billion in NASA funding.

But the name Elon Musk is known to make Nevada politicians swoon. Perhaps you recall how the Governor’s Office of Economic Development (GOED) this past year doled out $1.2 million of your money to another Musk-headed business. That tax money from a $10 million Catalyst Fund went to attract SolarCity to open an office in Las Vegas and create 100 jobs. SolarCity erects solar panels on rooftops, something a dozen or so taxpaying Nevada companies already do.

GOED board member Secretary of State Ross Miller fawned, “You had me at Elon Musk,” while voting to award the handout, despite the fact Article 8, Section 9 of the Nevada Constitution states: “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

That little Mexican hat dance on the state constitution prompted the legal arm of conservative think tank Nevada Policy Research Institute to file suit in the state district court in Carson City.

The suit was filed by the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation on behalf Michael Little, an alternative-energy entrepreneur, a taxpayer and a competitor of SolarCity.

“Nevada’s constitution clearly states that state government has no business picking winners and losers in the economy by subsidizing the favored,” said Joseph Becker, chief legal officer and director of the CJCL at the time. “Subsidies from state government to private businesses are unconstitutional and directly harm both taxpayers and competing businesses.”

As a part of its ongoing litigation in that case involving a Musk handout, CJCL retained an expert witness, Dr. Randall G. Holcombe, DeVoe Moore Professor of Economics at Florida State University.

In written testimony filed in the court case, Holcombe said, “Government subsidies to businesses are a drain on the economy, and do not provide any net benefit to the state of its citizens. If the business would be profitable without the subsidy, there is not public purpose served by paying it. If the business would not be profitable without the subsidy, then the subsidy supports a business that takes more out of the economy than it puts back in. Costs measure the value of resources firms take out of the economy; revenues measure the value of the output firms produce for the economy. Firms that produce more value than they take out of the economy benefit the economy. Firms that take more value out of the economy than they produce reduce economic welfare. Government policy produces the greatest economic benefit when it is neutral toward all firms, allowing firms that produce more value to prosper while those that drain value from the economy disappear. Government subsidies disrupt that process by distorting economic incentives. Even if a firm would be profitable without a subsidy, a subsidy allows the subsidized firm to use more resources than would be efficient.”

If that could be said of a $1 million subsidy, isn’t it 500 times more applicable to a $500 million handout?

Additionally, NPRI points out the state has thrice attempted to amend the constitution so it could legally subsidize companies. In 1992, a proposal was nixed by 76.5 percent of the voters. In 1996, 64.8 percent of voters opposed it. By 2000, resistance dwindled to 59.3 percent, but it still failed.

Despite the clear wording of the constitution and the majority of voters, Attorney General Catherine Cortez Masto’s opinion on the Catalyst Fund states: “The Nevada Constitution does not prohibit the State from disbursing Catalyst Fund money to regional development authorities that by definition must be local governments, or prohibit local governments from disbursing Catalyst Fund money to companies.”

Ross Miller is running for attorney general. What opinion do you think he will embrace if elected?

Musk already has a hand in your pocket. Now he wants your pants, too.

Friends of Ross Miller using anti-free speech state law to try to gag opposition group

Some pals of Nevada Secretary of State Ross Miller, son of former Gov. Bob Miller, are trying to gag of a Republican-leaning group airing an ad on TV and the Internet ridiculing Miller for taking $60,000 in gifts while in office — living the high life, as they put it.

State Government Leadership Foundation is the group running the ad and a website called millershouseofcards.com.

Nevadans for a Brighter Future filed a complaint with the Secretary of State’s Election Division — which will doubtlessly kick it to the attorney general due a rather obvious conflict of interest — claiming SGLF is violating NRS294A, a state law to demands anyone spending money on a candidate, election or issue register as a political action committee with the Secretary of State and file reports detailing spending and donations.

The gifts outlined in the ad include free tickets to UFC fights, shows on the Strip and a Beverly Hills conference, according the Las Vegas newspaper.

Ross Miller

“Fancy parties, exclusive sporting events. Posing with celebrities — even Playmates,” the ad says, while showing photos of Miller with Mike Tyson andHolly Madison. “Ah, one can dream, but for politician Ross Miller it’s reality.”

The ad concludes, “He lives the life. You pay the tab. Tell Ross Miller to stop living the high life at your expense.”

SGLF says it is spending $500,000 to air the ad.

Though Miller is running for attorney general against Republican Adam Laxalt, grandson of former Gov. and U.S. Sen. Paul Laxalt, the ad never mentions the race.

In his complaint letter attorney Matt Griffin says, “SGLF is identified as the party responsible for paying for the advertisement. The content and subject matter of the advertisement constitute ‘express advocacy’ under Nevada law. As such, the funds expended to produce and disseminate the advertisement are ‘expenditures’ under Nevada law.”

He goes to say that each time SGLF engages in any political activity it is breaking the law and it must be forced to follow the law.

Actually, this is the second time friends of Miller have tried to gag the out of state group. Earlier a Jim Lamb on behalf of Miller’s campaign wrote television station managers demanding the SGLF ads be pulled from the air because the ads falsely said taxpayers were the source of aforementioned gifts.

SGLF sent a letter in response to the TV stations. “The whole point of the ad, which is abundantly clear to anyone who sees it, is that Ross Miller has lived a lavish lifestyle while serving as Secretary of State,” the letter reads. “Mr. Lamb does not dispute any of this — he certainly does not dispute that Ross Miller took these gifts, nor can he dispute that Nevada’s taxpayers pay Ross Miller’s six-figure salary. Left unsaid, because the cannot dispute this either, is that Ross Miller received these gifts from special interests because of his taxpayer-funded position as Secretary of State. The facts are clear: Nevada’s taxpayers are paying for Ross Miller to be Secretary of State, and he is using that position to live the high life.”

The concludes by urging the stations to not be “badgered into protecting Ross Miller from the truth.”

But the complaint claims the ad constitutes “express advocacy,” which is prohibited under the law unless you register and file financial disclosure reports. The ad doesn’t even mention that Miller is standing for election, much less expressly advocate for or against his election.

A similar complaint was tossed out of court a couple of years ago because it was found the communication in question was not “express advocacy.”

Carson City Senor District Judge Robert Estes found the Secretary of State’s case against Americans for Prosperity lacking because the statute applies only to those spending money “on behalf” of a candidate.

Americans for Prosperity — funded by Harry Reid’s favorite conservative billionaires Charles and David Koch — sent out mailers in 2012 during the election campaign of Kelvin Atkinson for state Senate. Those mailers criticized Atkinson for co-sponsoring a 2011 renewable energy bill. But the mailers never mentioned his candidacy.

Of course, that is merely a technicality. The real concern should be that this law is palpably unconstitutional. The First Amendment prohibits abridgement of free speech and the 14^th Amendment extends that prohibition to states. Requiring registration and reporting of donors and spending abridges free speech. Period.

And the one thing the First Amendment is clearly intended to protect is “express advocacy.”

In the Supreme Court case Citizens United, the court held that groups, corporations and unions may not be singled out and barred from spending their own money in support of or opposition to a candidate or a cause.
Justice Antonin Scalia wrote in a concurrence: “The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

But in an inexplicable self-contradiction, the ruling let stand reporting and disclosure requirements similar to those in Nevada law. How can you remain anonymous if you must disclose?

But Justice Clarence Thomas, in a partial dissent, chided his comrades for this duplicity: “The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. … “Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …’”

But judges in Nevada have concocted a strange interpretation of the First Amendment. Carson City Judge James Wilson, while a Virginia-based for airing ads applauding Gov. Brian Sandoval, wrote: “Irreparable harm will occur to the voters and to the electoral process if broadcasting of the Ad is not enjoined, because voters are being deprived of the information to which they are entitled under Nevada law prior to casting their ballots,” namely, who donated the money to air the ads.

Never mind that Ben Franklin and other Founders often wrote under pseudonyms, that “Common Sense” was first published anonymously, that the Federalist Papers and the Anti-Federalist Papers were published under pseudonyms or that John Locke published his works anonymously.

The concept that Nevadans must not be deprived of certain identifying information is not even in the penumbra of the Constitution.

Free speech is a right, not a privilege that requires a permit or disclosure of donors. The entire Nevada law should be repealed or declared unconstitutional.

‘If the law supposes that … the law is a ass — a idiot’

A victory for free speech is a victory, even if it is for the wrong reason.

Carson City Senor District Judge Robert Estes tossed a lawsuit from the Nevada Secretary of State against Americans for Prosperity nearly a month ago, saying the statute in question applies only to those spending money “on behalf” of a candidate, according to the AP.

The AFP —  funded by conservative billionaires Charles and David Koch — sent out mailers in 2012 during the election campaign of Kelvin Atkinson for state Senate in 2012. Those mailers criticized Atkinson for co-sponsoring a 2011 renewable energy bill, AB416, It has been estimated the bill would have cost power customers as much as $1 billion in higher bills.

“There can be no argument whatsoever that the fliers were sent on behalf of Assemblyman Atkinson,” Estes wrote in his Oct. 17 ruling, but he the state’s claim that the meaning of “on behalf” is the same as “about” a candidate is a “strained argument.”

“Certainly many people benefited by mailing fliers, even the post office,” the judge wrote. “Simply because an entity may benefit from a political activity, it is not a given that the activity was done on the beneficiaries’ behalf.”

Secretary of State Ross Miller said he won’t appeal and noted he has prevailed in two similar cases.

“This court based its decision on a factual determination of a specific political mailer,” Miller told the AP. “The facts of each case are different and I don’t anticipate that this ruling will prevent us in any way from enforcing the rules moving forward.”

Of course the Las Vegas Review-Journal’s drooling liberal lapdog columnist Steve Sebelius doesn’t believe billionaires should allowed free speech and called on the state’s lawmakers to “revise the law to encompass all electioneering communications designed to influence the public in any way, and attach a requirement to report donations and expenditures. With the U.S. Supreme Court expanding the rights of corporations to influence elections, and the increasing use of nonprofits that can legally shield donors, it’s more important than ever that the people know who’s trying to buy their votes, and why.”

Of course this is palpable nonsense and contrary to the principles and actions of the Founders who often penned anonymous screeds. The voters are perfectly capable of using their own noggins to evaluate any message that reaches their ears. They do not need tax-funded protection against their own gullibility.

In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets.

In declaring the Ohio law unconstitutional, Supreme Court Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

In the Citizens United case — the case that Obama blasted the high court for in a State of the Union address with justices sitting in front of him — the court held that groups, corporations and unions may not be singled out and barred from spending their own money in support of or opposition to a candidate or a cause.

Justice Antonin Scalia explained in a concurrence:

“The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

But in an inexplicable self-contradiction, the ruling let stand reporting and disclosure requirements similar to those in Nevada law. How can you remain anonymous if you must disclose?

But Justice Clarence Thomas, in a partial dissent, chided his comrades for this duplicity:

“The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. …

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …’ “

Free speech is a right, not a privilege that requires a permit or disclosure of identity. The entire Nevada law needs to be either repealed or declared unconstitutional. Abridging is abridging is abridging.

This law is a ass.

I wonder what R-J columnists would write if the Stephens family and Club for Growth started sending out political mailers without first paying homage to Ross Miller.

For a thorough discussion of this topic, read Steven Miller’s three-part series, ”R.I.P., Publius,” at Nevada Policy Research Institute — Part I, Part II, Part III.

Could secretary of state use AB60 like the IRS did to go after conservative nonprofits?

What do you call déjà vu that hasn’t happened yet? A premonition?

On Friday the IRS apologized for something it previously denied ever happened — IRS employees in the Cincinnati office basically crawled into the shorts of any tax-exempt organization that used the words “tea party” or “patriot” in their names. The IRS refused to say whether anyone was disciplined. They probably got promoted.

That’s why I look askance at Assembly Bill 60 which would give the Nevada Secretary of State’s office unprecedented powers and documentation to crawl into the shorts of just about any nonprofit organization in the state that solicits contributions. Existing law already regulates nonprofits, but AB60 would require huge amounts of paperwork and provide serious penalties for failure to jump through bureaucratic hoops. The attorney general would enforce the law.

Here is a brief section AB60:

2. A corporation which intends to solicit charitable contributions must, at the time of filing its articles of incorporation pursuant to NRS 82.081, file on a form prescribed by the Secretary of State:
(a) The information required by subsection 3; and
(b) A financial report.
3. The form required by subsection 2 must include, without limitation:
(a) The exact name of the corporation as registered with the Internal Revenue Service;
(b) The federal tax identification number of the corporation;
(c) The name of the corporation as registered with the Secretary of State or, if a foreign nonprofit corporation, the name of the foreign nonprofit corporation as filed in its jurisdiction of origin;
(d) The purpose for which the corporation is organized;
(e) The name or names under which the corporation intends to solicit charitable contributions;
(f) The address and telephone number of the principal place of business of the corporation and the address and telephone number of any offices of the corporation in this State or, if the corporation does not maintain an office in this State, the name, address and telephone number of the custodian of the financial records of the corporation;
(g) The names and addresses, either residence or business, of the officers, directors, trustees and executive personnel of the corporation;
(h) The last day of the fiscal year of the corporation;
(i) The jurisdiction and date of the formation of the corporation;
(j) The tax exempt status of the corporation; and
(k) Any other information deemed necessary by the Secretary of State, as prescribed by regulations adopted by the Secretary of State pursuant to section 9 of this act.

I especially love the catch-all phrase “any other information deemed necessary by the Secretary of State.”

To become tax exempt, a nonprofit must comply with federal statutes. Why is this extra paperwork with the state necessary, except to provide the power to intimidate?

One hint about this bill, it passed the Assembly in April with every single Republican voting “nay.”

You can comment on the bill if you like here. Not sure anyone will read it. Might be better to email your state senator, especially if he or she is a Democrat.

Do you trust Democrat Secretary of State Ross Miller and Democrat Attorney General Catherine Cortez Masto to not abuse the powers that would granted by AB60?

Catherine Cortez Masto

Ross Miller

Weekly column: Governor’s Office of Economic Development welcomes new workers to take your job

With $10 million in tax money burning a hole their pocket, the Governor’s Office of Economic Development (GOED) awarded funds to several companies planning to move to Nevada and set up shop and, well, compete against those who paid those taxes.

As recounted in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press, the money comes from Nevada’s $10 million Catalyst Fund.

The largest handout went to SolarCity. The company installs solar panels at homes, businesses and government agencies. It is getting $1.2 million and says it plans “to initially create more than 100 jobs” by opening an office in Las Vegas.

One wonders whether the employees of Bombard Electric in Las Vegas or Silver State Renewables of Elko or Sierra Solar of Reno or Bristlecone Energy of Ely or the two dozen other companies in Nevada that do the same work appreciate seeing their tax money funneled to a competitor, especially one under investigation.

SolarCity workers install residential rooftop solar panels. (Photo by SolarCity

SolarCity is being investigated by the Treasury Department for possible fraud in obtaining $66 million in grants from the Department of Energy for installing solar panels.

Company founder Elon Musk is a big contributor to Democratic campaigns in general and to President Obama and Sen. Harry Reid in particular. According to one news account, GOED board member Secretary of State Ross Miller fawned, “You had me at Elon Musk,” while voting to award the handout.

Musk’s electronic car company Tesla received a federal loan guarantee for $465 million, but has lost or written off more than $1 billion. Musk’s SpaceX gets $1 billion in NASA funding.

“Musk symbolizes the Obama entrepreneur — someone who relies on government to make their riches as opposed to the marketplace,” the Western Center for Journalism observed. Add Nevada riches to the list.

Yes, here are your tax dollars in action, helping someone else try to take your job.

Read the entire column at the Ely or Elko website.

Solar firm enticed with tax money to come to Las Vegas is being investigated for possible fraud

It turns out the Governor’s Office of Economic Development is doling out $1.2 million in funding and/or tax incentives from Nevada’s Catalyst Fund to get California-based SolarCity to locate operations in Las Vegas while the company is being investigated by the Treasury Department for possible fraud in obtaining grants from the Department of Energy for installing solar panels.

According to the Western Center for Journalism, SolarCity has received more than $66 million from that program. That’s in addition to a $344 million loan guarantee from Energy.

The prices SolarCity and other companies were listing for their work may have been inflated, the Washington Post reports. “While firms can install solar panels for roughly $5 per watt of energy and make a comfortable profit, some firms were charging as much as $7 and $8 per watt.”

The awarding of the incentive money to SolarCity comes two weeks after the company reported its first earnings since becoming a public company, according to the San Jose Mercury-News. “The San Mateo-based solar installer posted a fourth-quarter loss of $3.04 million, or $1.10 cents a share, compared with net income of $3.7 million, or 24 cents a share, a year earlier. Analysts had expected a loss of 49 cents a share, and SolarCity’s shares were down more than 9 percent in after-hours trading.”

The company’s founder is Elon Musk, a big contributor to Democratic campaigns in general and to President Obama and Sen. Harry Reid in particular.

According to a Vegas Inc. story earlier this week, Gov. Brian Sandoval said he was pleased SolarCity was coming to Nevada. “This is a monumental moment for this board,” Sandoval said after a unanimous vote to award the funds by the Governor’s Office of Economic Development board.

“You had me at Elon Musk,” the article quoted board member Ross Miller, the secretary of state.

Musk’s electronic car company Tesla received a federal loan guarantee for $465 million. According to the San Francisco Business Times, Tesla lost $89.9 million in the fourth quarter of 2012, bringing the company’s total amount lost or written off to more than $1 billion.

Musk’s SpaceX gets $1 billion in NASA funding.

“Musk symbolizes the Obama entrepreneur — someone who relies on government to make their riches as opposed to the marketplace,” the Western Center for Journalism observed. Add Nevada to the list of government suckers.