Outreach does not dispute that it published the flyers or that it did not
disclose its contributors and expenditures, and we are asked only to decide
whether the flyers were express advocacy under applicable Nevada law.
Because we conclude that the flyers did not expressly advocate the defeat
of Oceguera under the applicable versions of Nevada's campaign practices
statutes, we reverse.
             In 2010, when Citizen Outreach distributed the flyers, an
organization that made an "expenditure" on behalf of a candidate was
required to disclose all contributors who gave the organization more than
$100, NRS 294A.140(1) (2007), and all expenditures over $100, NRS
294A.210(1) (2007). "[E]xpenditure[]" was defined as money spent "to
advocate , expressly the election or defeat of a clearly identified candidate,"
NRS 294A.004(2) (2009) (emphasis added), but "advocate expressly" was
not defined by statute until 2011. 2011 Nev. Stat., ch. 501, § 36, at 3286;
see also NRS 294A.0025.
             Citizen Outreach argues that the 1997 Legislature, which
enacted the essential language contained in NRS 294.004(2) (2009), 1997
Nev. Stat., ch. 118, § 17, at 238-39, intended to create a bright -line rule
limiting express advocacy to communications containing so-called magic
words of advocacy. These words may include 'vote for,' elect,'
'support,' . . . 'vote against,' defeat,' [or] 'reject."   Buckley v. Valeo, 424
U.S. 1, 44 n.52 (1976); see also, e.g., Fed. Election Comm'n v. Christian
Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997); Fed. Election
Comm'n v. Cent. Long Island Tax Reform Immediately Comm.,              616 F.2d
45, 52-53 (2d Cir. 1980). In contrast, the State argues that the Legislature
intended to include as express advocacy communications that lack magic
words but nevertheless unambiguously command readers to vote for or



                                          2
                against a candidate. See Fed. Election Comm'n v. Furgatch, 807 F.2d 857,
                864 (9th Cir. 1987); 11 C.F.R. § 100.22(b) (2011); see also 2011 Nev. Stat.,
                ch. 501, § 36, at 3286 (adopting this broader definition of express
                advocacy). Both of these interpretations are plausible, thus we turn to the
                legislative history for guidance. See State, Div. of Ins. v. State Farm Mut.
                Auto. Ins. Co., 116 Nev. 290, 294, 995 P.2d 482, 485 (2000) (stating that
                this court will turn to legislative history when interpreting an ambiguous
                statute).
                              Having reviewed the legislative history of NRS 294A.004(2)
                (2009), it is unclear which interpretation of "advocate expressly" the 1997
                Legislature intended to adopt. Weighing in favor of Citizen Outreach's
                proposed interpretation, Furgatch was not mentioned by name in the
                legislative history, whereas Buckley was. See Hearing on S.B. 215 Before
                the Senate Government Affairs Comm., 69th Leg. (Nev., April 7, 1997), at
                7-8. In addition, the majority of courts having decided the issue prior to
                1997 held that a communication was not express advocacy without magic
                words.      See, e.g., Christian Action Network, 110 F.3d at 1050-51; Fed.
                Election Comm'n v. Colo. Republican Fed. Campaign Comm., 59 F.3d
                1015, 1023 n.10 (10th Cir. 1995), vacated on other grounds, 518 U.S. 604,
                626 (1996); Faucher v. Fed. Election Comm'n, 928 F.2d 468, 470-71 (1st
                Cir. 1991); Fed. Election Comm'n v. Mass. Citizens for Life, Inc.,   769 F.2d
                13, 20 (1st Cir. 1985), affd, 479 U.S. 238 (1986); Cent. Long Island Tax
                Reform Immediately Comm.,         616 F.2d at 53. On the other hand,
                legislative counsel was specifically asked to research the differences
                between issue advocacy and express advocacy, Hearing on S.B. 215 Before
                the Senate Government Affairs Comm., 69th Leg. (Nev., March 19, 1997),
                at 11, and later reported that expenditures meant money spent for

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                communications that either use magic words of advocacy or that, given the
                context of the communication, communicate an unambiguous plea to vote
                for or against a clearly identified candidate. Hearing on S.B. 215 Before
                the Senate Government Affairs Comm., 69th Leg. (Nev., April 7, 1997), at
                8. The fact that legislative counsel was answering a specific question
                suggests the Legislature intended to adopt the broader           Furgatch
                construction mentioned by legislative counsel. Nevertheless, the
                Legislature did not discuss either the magic words or the contextual
                approach in any depth. Thus, we cannot conclude from the legislative
                history that the Legislature intended "advocate expressly" to include
                communications that lack magic words.
                           We are also not persuaded that the 2011 enactment of a
                statutory definition of "advocate expressly" unambiguously indicates the
                1997 Legislature's intent. In 2011, the Legislature enacted NRS
                294A.0025, which states that "[a]dvocates expressly" "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." Therefore, since 2011, a communication need not
                contain magic words to be express advocacy. NRS 294A.0025.
                            NRS 294A.0025 was passed in 2011 as part of Assembly Bill
                81. 2011 Nev. Stat., ch. 501, § 36, at 3286. During discussion of A.B. 81,
                the Secretary of State explained that adding a "definition of 'express
                advocacy' will make it clear that Nevada does not require" magic words for
                a communication to be express advocacy. Hearing on A.B. 81 Before the
                Senate Legislative Operations & Elections Comm., 76th Leg. (Nev., May 5,
                2011), at 5 (emphasis added). Although the Secretary of State
                unambiguously saw NRS 294,603025 as clarifying rather than changing

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                existing law, no member of the Legislature expressed this view.           See
                generally Hearing on A.B. 81 Before the Senate Legislative Operations &
                Elections Comm., 76th Leg. (Nev., May 5, 2011). Thus, it is not clear
                whether the 2011 Legislature believed NRS 294A.0025 would
                substantially change or merely clarify existing law.       See Pub. Emps.'
                Benefits Program v. Las Vegas Metro. Police Dep't, 124 Nev. 138, 156-57,
                179 P.3d 542, 554-55 (2008) ("[W]hen the Legislature substantially
                amends a statute, it is ordinarily presumed that the Legislature intended
                to change the law. Nevertheless, . . . when a statute's doubtful
                interpretation is made clear through subsequent legislation, we may
                consider the subsequent legislation persuasive evidence of what the
                Legislature originally intended." (Internal quotation marks and footnotes
                omitted.)).
                              The magic words test may be easy to avoid, see Furgatch, 807
                F.2d at 863, but it is also a bright-line rule that is easy for potential
                speakers to understand and for the State to enforce.      See Iowa Right to
                Life Comm., Inc. v. Williams,   187 F.3d 963, 969 (8th Cir. 1999) (stating
                that Buckley adopted a bright-line rule "[t]o avoid uncertainty, and
                therefore invalidation of a regulation of political speech"). Moreover, a
                majority of courts in 1997 had adopted the magic words test—the Ninth
                Circuit was the exception. See, e.g., Christian Action Network, 110 F.3d
                at 1050-51. Therefore, the conclusion that NRS 294A.004(2) (2009) only
                included as express advocacy communications containing magic words is
                not unreasonable and will not lead to absurd results.      See D.R. Horton,
                Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 477, 168 P.3d 731, 738
                (2007) (stating that this court avoids interpretations of statutes that cause
                absurd results).

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                             Perhaps the 1997 Legislature intended express advocacy to
                include more communications than those that contain magic words, but
                this intent was not clear—from either the language of NRS 294A.004(2)
                (2009) or its legislative history—when Citizen Outreach distributed its
                flyers. See State Farm Mut. Auto. Ins. Co.. 116 Nev. at 294, 995 P.2d at
                485 (stating that this court considers legislative history when interpreting
                an ambiguous statute). When it comes to the exercise of First Amendment
                rights, any "tie goes to the speaker, not the censor." Fed. Election Comm 'n
                v. Wis. Right to Life, Inc.,   551 U.S. 449, 474 (2007). As a result, we
                conclude that basic principles of fundamental fairness require us to
                construe NRS 294A.004(2) (2009) narrowly, limiting it to only those
                communications that contain magic words of express advocacy.             See
                Thomas v. Nev. Yellow Cab Corp., 130 Nev. , 327 P.3d 518, 521
                (2014) (stating that this court construes statutes to comport with the
                constitution when reasonably possible); Carrigan v. Comm'n on Ethics,
                129 Nev. „ 313 P.3d 880, 884 (2013) (stating that due process
                requires laws to provide fair notice of what conduct is prohibited).
                             Because it is undisputed that Citizen Outreach's flyers do not
                contain magic words of express advocacy, the flyers were not subject to
                regulation under Nevada's campaign practices statutes that were effective
                in 2010. 1




                      'We decline to address the other constitutional arguments made by
                the parties as unnecessary to our disposition of this appeal. See Miller v.
                Burk, 124 Nev. 579, 588 - 89, 188 P.3d 1112, 1118 - 19 (2008).

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          Accordingly, we
          ORDER the judgment of the district court REVERSED.




                                      1,k
                                Hardesty



                                Parraguirre




                                            Pickuti
                                Pickering



cc: Hon. James E. Wilson, District Judge
     David Wasick, Settlement Judge
     Center for Competitive Politics
     Mueller Hinds & Associates
     Attorney General/Carson City
     Carson City Clerk




                                  7
                CITIZEN OUTREACH VS. STATE                                       No. 63784


                DOUGLAS, J., with whom SAITTA, J., agrees, dissenting:
                            As to the campaign practices in Nevada, the magic word test
                should not be required, so as to allow for the transparency in disclosure of
                contributions and expenditures spent advocating expressly the election or
                defeat of a clearly identified candidate.
                            When the 1997 Legislature was discussing the definition of
                expenditures" at issue here, legislative counsel was specifically asked to
                research the difference between issue advocacy and express advocacy
                under then-existing law. Hearing on S.B. 215 Before the Senate
                Government Affairs Comm., 69th Leg. (Nev., March 19, 1997), at 11. At a
                later committee session, legislative counsel explained that expenditures
                meant money spent for communications that either use magic words of
                advocacy or that, given the context of the communication, communicate an
                unambiguous command to vote for or against a clearly identified
                candidate. Hearing on S.B. 215 Before the Senate Government Affairs
                Comm., 69th Leg. (Nev., April 7, 1997), at 8.
                             I would note Furgatchl was not mentioned by name, but it is
                apparent that legislative counsel was referring to Furgatch and its
                contextual understanding of express advocacy.     See Hearing on S.B. 215
                Before the Senate Government Affairs Comm., 69th Leg. (Nev., April 7,
                1997). at 8. Citizen Outreach argues that the Legislature intended to



                'Fed,. Election Comm'n v. Furgatch, 807 F.2d 857 (9th Cir. 1987).


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                adopt the magic words test because Buckley, 2 unlike Furgatch, was
                mentioned by name throughout the legislative history. That legislative
                history reflects, however, that the only people to name Buckley while
                advocating for the magic words test were lobbyists or members of the
                public.     See Hearing on S.B. 215 Before the Senate Government Affairs
                Comm., 69th Leg. (Nev., March 19, 1997), at 1-2, 5, 7, 9-10. Therefore
                these comments do not necessarily reflect the Legislature's intent.
                               Moreover, the narrow magic words test as allowed by the
                majority will "eviscerate[e]" Nevada's disclosure requirements because a
                speaker can easily skirt these requirements simply "by avoiding certain
                key words while conveying a message that is unmistakably directed to the
                election or defeat of a named candidate."      Furgatch, 807 F.2d at 863.
                Thus, I cannot conclude that the Legislature intended to enact this
                extensive legislation to achieve such little practical purpose.       See D.R.
                Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 477, 168 P.3d
                731, 738 (2007) (stating that this court avoids interpretations of statutes
                that render language meaningless or produce absurd results). I submit
                that the Legislature must have intended to adopt the broader, contextual
                definition of "advocate expressly" discussed in Furgatch rather than the
                narrower magic words test adopted by other courts.
                               As to the flyers at issue here, under           Furgatch a
                communication advocates expressly if (1) the "message is unmistakable
                and unambiguous," (2) the communication "presents a clear plea for
                action," and (3) it is "clear what action is advocated," such that a
                reasonable person could only understand that voting for or against a

                2 Buckley   v. Valeo, 424 U.S. 1 (1976).


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                particular candidate was being advocated.      Furgatch, 807 F.2d at 864. I
                submit that both of Citizen Outreach's flyers were express advocacy under
                Furgatch's three-part test. The first flyer described Oceguera as "Getting
                Fat off the Taxpayers" by earning one salary as a firefighter and one as an
                assemblyman, "voting for tax hikes," and "sponsoring trivial legislation."
                The flyer concluded "[w]e don't need any more fiddling from John
                Oceguera." The second flyer bore similar criticisms, accused Oceguera of
                CC
                     gam[ing] the system to retire at age 48," and commanded voters to "tell
                John Oceguera that he needs to work like the rest of us!" The only way
                that a voter could stop Oceguera's "fiddling" or "tell" him "to work like the
                rest of us" was by voting against Oceguera. Thus, these flyers
                communicate a clear and unambiguous plea to vote against Oceguera and
                are express advocacy under Furgatch and NRS 294A.004(2) (2009).
                               The Arizona Court of Appeals recently addressed a television
                advertisement that commanded viewers to "[t]ell [the candidate] to protect
                children, not people who harm them," and provided the candidate's office
                telephone number.        See Comm. for Justice & Fairness v. Ariz. Sec'y of
                State's Office, 332 P.3d 94, 96 (Ariz. Ct. App. 2014) (first alteration in
                original) (internal quotation marks omitted). Because Arizona law
                contemplated a contextual understanding of express advocacy similar to
                the Furgatch test, the court concluded that the advertisement was express
                advocacy subject to regulation. Id. at 100, 102. Similar to the flyers here,
                the advertisement in Committee for Justice and Fairness instructed
                viewers to "[t]ell" the candidate to change his behavior. Id. at 96. But the
                advertisement gave viewers a way to tell the candidate by providing the
                candidate's telephone number, id., whereas the flyers in this case provided
                no such alternative method. Thus, the message of Citizen Outreach's

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                flyers was an even clearer plea to vote against Oceguera than the message
                in Committee for Justice and Fairness.
                           Unlike the majority, I would reject Citizen Outreach's
                arguments that the First Amendment mandates additional limitations on
                disclosure requirements not imposed by NRS Chapter 294A. Contrary to
                Citizen Outreach's assertions, the First Amendment does not mandate
                that disclosure requirements be limited to (1) communications using magic
                words, McConnell v. Federal Election Commission, 540 U.S. 93, 192-94
                (2003), overruled on other grounds by Citizens United v. Federal Election
                Commission, 558 U.S. 310, 365-66 (2010); (2) contributions earmarked for
                political purposes by the donors, Center for Individual Freedom, Inc. v.
                Tennant, 706 F.3d 270, 292 (4th Cir. 2013); or (3) entities that have
                political advocacy as a major or primary purpose.       See Human Life of
                Wash., Inc. v. Brumsickle, 624 F.3d 990, 1009-10 (9th Cir. 2010).
                            Simply put, the District Court got it right; magic words are not
                required as to express advocacy communications, and disclosure of
                contributions and expense over $100 by groups should be required.




                                                                                    J.




                Saitta




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