MUTH'S TRUTHS 09/11/2015

Time for Feds to Step in and Restore Nevadans’ First Amendment Rights

Chuck Muth

September 11, 2015

It’s been drilled into us since we were kids.  That this is a nation of laws.  And the supreme law of the land is the United States Constitution.

And that Constitution prohibits the federal government from passing laws to deny certain rights to the people.  For example, the First Amendment stipulates that Congress shall make no law abridging the right of the people to petition the government for a redress of grievances.

And thanks to the 14th Amendment, that prohibition extends to the various states.  Unfortunately for the citizens of Nevada, our government appears to have missed the memo.

While both the federal and state governments operate under a republican form of government – meaning we elect people to represent us – Nevada’s Constitution also provides for the people to petition the government directly in the form of initiatives and referendums.

The procedures and requirements for the people to petition the government through the initiative and referendum process are clearly spelled out in Article 19. 

The legislature’s role is also clearly outlined and strictly limited: “The provisions of this article are self-executing but the legislature may provide by law for procedures to facilitate the operation thereof.”

Facilitate.  That means to make easy or easier.

But since around 2005, the Nevada Legislature has done the exact opposite.

It has passed laws relating to initiatives and referendums which have made it virtually impossible for the citizens of Nevada to directly petition their government, arguably in violation of the First Amendment of the United States Constitution.

The Abridgements of NRS Chapter 295

Among the ways NRS Chapter 295 complicates rather than facilitates the petitioning process for citizen initiatives and referendums…

It requires a “description of effect” that is not required by Article 19 of the Nevada Constitution.  And this statute has been used with great effect to kill previous citizen initiatives in court.

It requires that petitions be limited to a “single subject,” the draconian definition of which has been construed by the courts far more strictly for initiatives and referendums than a nearly identical constitutional limitation on legislation.

This one is so bad that a court challenge was recently filed against a referendum on a bill passed by the 2015 Legislature in which the language for the referendum is IDENTICAL to the language of the bill itself. 

Seriously, this borders on an actionable civil rights violation.

Chapter 295 also requires that signatures be gathered proportionally, even though federal courts have stricken down such requirements several times.

It requires a “crystal ball” report from the Legislative Counsel Bureau detailing “any anticipated financial effect” the initiative or referendum might have on the government despite no requirement for such a government-produced report being found in the “self-executing” provision in the Nevada Constitution.

It requires that the circulator of a petition provide an affidavit declaring certain qualifications for circulating a petition, including a requirement that said affidavit be sworn and signed before a notary – which usually incurs a fee and makes circulating such a petition more difficult, not easier.

In addition, the intrusive circulator affidavit requirement has been construed to apply even to an individual citizen who might pick up or download a blank copy of the petition, sign it and submit it to the proponents. 

To require an individual citizen to incur the inconvenience and cost of having their individual signature notarized in order to participate in petitioning their government should clearly be as unconstitutional as a “poll tax.”

It provides “standing” for anyone – including non-Nevadans and others who have not been injured or adversely affected in any way – to challenge any initiative or referendum petition on grounds that it violates single subject or description of effect requirements that are not found in the Nevada Constitution. 

It requires that all such challenges to an initiative or referendum be filed in the First Judicial Court in Carson City - which since 2005 has been a graveyard for citizen petitions - even though some two-thirds of Nevada’s population lives in Clark County, which is a good 7-8 hour drive away.

This provision has facilitated the KILLING of initiatives and referendums, not the operation thereof.

The Infringements of NRS Chapter 294

In addition, NRS Chapter 294 further complicates and restricts the ability of the people to exercise their First Amendment right to association and free speech.

In it the Legislature has imposed a broad and subjective definition of “express advocacy” that is in conflict with the generally accepted “magic words” test outlined by the Supreme Court of the United States in Buckley v Valeo.

Using this broad and largely unrecognized definition of “express advocacy,” Nevada’s government has compelled citizens and grassroots organizations to file burdensome campaign finance reports that include the disclosure of the identity of donors to independent expenditures advocating for the passage or defeat of initiatives and referendums.

This is in direct contradiction of the Supreme Court’s ruling in Buckley, which declared that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment."

This was proved particularly true in California a couple years ago when donors to a gay marriage ballot initiative were publicly identified and subsequently subjected to harassment, threats and boycotts. 

Shielding the identity of donors to initiatives and referendums is also necessary to protect them from retaliation by powerful government officials and agents.

The Court further ruled that disclosure requirements only applied to individuals and groups “when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate." 

A ballot initiative or referendum is not a “clearly identified candidate” regardless of the definition of “express advocacy” one might adopt. 

The purpose of disclosure is to minimize the chance that donations will unduly influence or corrupt the decisions made by a candidate or elected official.  But one cannot unduly influence or corrupt a ballot initiative or referendum the way donors and lobbyists can and often do with legislators.

Combined, all of these, and other, legislatively imposed requirements for initiatives and referendums have had the effect of blocking all but one citizen-initiated petition over the past decade – and the purpose of the approved one was to sock Nevada’s citizens and business community with a huge new tax hike.

Go figure.

Oh, and just as a reminder…that gross receipts tax hike initiative was rejected last November by 80 percent of Nevada voters. 

The Lawsuit to Restore Constitutional Rights

In any event, the effects of the various provisions embedded in Chapters 294 and 295 have had a chilling effect on the ability of Nevada’s citizens to petition their government, especially the “single subject” provision.

And as every first-year law student knows, statutes cannot overrule the Constitution.

As such, Citizen Outreach and others filed a lawsuit in 2012 challenging starkly different interpretations of the “single subject” rule as applied by the courts to initiatives and referendums and legislation. 

We, the people lost at the district court level, where big money special interests with no “standing” were allowed to weigh in.  So we appealed to the Nevada Supreme Court.

Our appeal was heard by the Court in March of 2014 – almost a year and a half ago.  And at the time of this writing - fully into the 2016 election cycle in which citizen petitions for initiatives and referendums are being filed again - the Court has yet to issue a decision on the case.

Clearly the First Amendment constitutional rights of Nevada citizens to petition their government are being violated and abridged by the Nevada Legislature.

Clearly the deck is stacked against Nevada’s citizens, especially when lobbyists for deep-pocketed special interests such as the Nevada Mining Association, the Retail Association of Nevada, the Las Vegas Chamber of Commerce and Big Gaming have been afforded “standing” to defend these unreasonable restrictions on the petitioning process in court. 

Clearly the average Nevada citizen can’t get a fair shake when it comes to these onerous infringements and abridgements of their First Amendment constitutional rights.

Clearly it’s time for the federal courts to step in.

(Mr. Muth is president of CitizenOutreach.com and the publisher of www.NevadaNewsandViews.com.  You can reach him at ChuckMuth.com)