Ross Miller v. Tea Party, Inc. (& Why This Matters)

So Nevada Secretary of State Ross Miller has been in the news lately due to his election reform bill. However, that's not all he's been up to lately. He's also pursuing a potentially groundbreaking development in campaign finance.

Remember this story from July? "Tea Party" astroturf outfit AFP Nevada had campaigned in a Democratic (??!!) State Senate primary in North Las Vegas, and the Secretary of State's office noticed that AFP had done so without complying with state disclosure laws. (AFP is notorious for keeping its donor list a secret.) So AFP landed in the hot seat.

Yet despite this, AFP continued campaigning in several State Senate races, though this time AFP campaigned in races where Republicans needed to win to flip control of the State Senate. Perhaps because AFP's campaign was rather clumsy at times, Democrats managed to retain control of the State Senate. But nonetheless, AFP likely violated state law again by campaigning without disclosing any financial reports.

And this is why AFP has landed into deep trouble.

Miller’s court case against Americans for Prosperity, a gigantic national conservative group founded by the Koch Brothers, could pull back the curtain on the organization’s donors. AFP spent a reported $33 million during Campaign 2012, according to Open Secrets. But, by federal law, as a 501C entity AFP does not have to disclose its donors.

To the Federal Election Commission, that is. But Miller’s case against AFP, using its foolish meddling in a Democratic primary, is like a sheriff in the Old West: You come to my town, you play by my rules.

Miller, who acknowledges there is no national case law, basically argues in a lawsuit that AFP cannot expressly advocate for or against a candidate and get away with not disclosing its donors under Nevada law. The local AFP chapter never registered as either a nonprofit or PAC, [thus] exposing the national organization to Miller’s suit. It’s a case surely being monitored by DC experts and one with potentially wide ramifications for campaign disclosure, which Miller has long advocated.

And in case you were wondering, here's the provision in the Nevada Revised Statutes (NRS) that AFP landed into trouble with.

NRS 294A.0025 “Advocates expressly” or “expressly advocates” defined. “Advocates expressly” or “expressly advocates” 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 or group or candidates or a question or group of questions on the ballot at a primary election, primary city election, general election, general city election or special election. A communication does not have to include the words “vote for,” “vote against,” “elect,” “support” or other similar language to be considered a communication that expressly advocates the passage or defeat of a candidate or a question.

The spin crew at AFP Nevada still claim they did no wrong. But in examining the doorhangers, mailers, and other material they were sending to voters, it becomes quite crystal clear that AFP literature "advocated expressly" against voting for Democratic Legislature candidates. And since AFP Nevada engaged in this very activity without registering a PAC and disclosing its campaign finances, it's unclear as to exactly how AFP will defend its actions.

If Ross Miller succeeds in this law suit, Ralston is correct that it will have wide ramifications. AFP and other shadowy "Tea Party, Inc." outfits will have to think twice before campaigning. And they may ultimately have to agree to disclose campaign finances and show us the voters their donor lists. And if this happens, it will be a huge win for "small d democracy" as it gives progressives a path forward in challenging secretive big corporate money in a post-Citizens United nation.