                  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 expressly advocated the defeat of
                  Oceguera, we affirm.
                               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[1" 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
                  against a candidate. See Fed. Election Comm'n v. Furgatch, 807 F.2d 857,

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                   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, Diu. 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).
                                  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. Although Furgatch was not
                   mentioned by name, it is apparent that legislative counsel was referring to
                   Furgatch and its contextual understanding of express advocacy.          See id.
                   Citizen Outreach argues that the Legislature intended to adopt the magic
                   words test because Buckley, unlike Furgatch, was mentioned by name
                   throughout the legislative history.     See id. at 7. The 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



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                   Leg. (Nev., Mar. 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 would"eviscerat[e]"
                   Nevada's disclosure requirements because a speaker could 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. We 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). Therefore, we conclude 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. We now turn to Furgatch and 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 particular candidate was being advocated.
                   Furgatch, 807 F.2d at 864. We conclude 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

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                similar criticisms, accused Oceguera of "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
                flyers was an even clearer plea to vote against Oceguera than the message
                in Committee for Justice and Fairness.
                            We also 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

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                 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). 1
                              The district court therefore properly granted summary
                 judgment in favor of the State.




                       1 Citizen  Outreach also argued for the first time in its reply brief that
                 even if none of these additional limitations were constitutionally
                 mandated, NRS 294A.004(2) (2009) nevertheless cannot survive exacting
                 scrutiny. Because Citizen Outreach did not make this argument until its
                 reply brief, we decline to address it. See Edelstein v. Bank of New York
                 Mellon, 128 Nev. , n.13, 286 P.3d 249, 261 n.13 (2012) (stating that
                 this court need not consider arguments raised for the first time in reply
                 briefs); see also NRAP 28(c) (stating that a reply brief "must be limited to
                 answering any new matter set forth in the opposing brief').

                       To the extent that Citizen Outreach argues that Nevada's disclosure
                 requirements violate the First Amendment as applied to Citizen Outreach,
                 we summarily reject this argument due to Citizen Outreach's failure to
                 put forth any evidence below to support it. Cf. Bates v. City of Little Rock,
                 361 U.S. 516, 524, 527 (1960) (holding that ordinances mandating
                 disclosure of organizations' membership lists violated the First
                 Amendment as applied where "substantial uncontroverted evidence"
                 indicated that people identified as members of the organizations were
                 harassed and threatened, and fear of community hostility resulting from
                 disclosure caused reductions in membership).


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



                                                  /                      , C.J.
                                                Hardesty


                                                                            J.
                                                Parraguirre




                                                Gibbons




                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




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                   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 Furgatch," 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 ix 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[er 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 "Nell" 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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40) 1947A ,,ifSCip
