MINUTES OF MEETING
ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES
Sixty-seventh Session
May 27, 1993
The Assembly Committee on Elections and Procedures was called to order by Chairman Myrna T. Williams at 3:35 p.m., Thursday, May 27, 1993, in Room 331 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mrs. Myrna T. Williams, Chairman
Mr. Robert E. Price, Vice Chairman
Mr. Joseph E. Dini, Jr.
Mrs. Jan Evans
Mr. Val Z. Garner
Mr. David E. Humke
Mrs. Joan A. Lambert
Mr. William A. Petrak
Mr. Scott Scherer
COMMITTEE MEMBERS ABSENT:
Mr. Gene T. Porter
Mr. Robert M. Sader
GUEST LEGISLATORS PRESENT:
Assemblyman Lynn Hettrick, District No. 39
STAFF MEMBERS PRESENT:
Mr. Robert Erickson/Research Director, Legislative Counsel Bureau
Mr. John R. Crossley/Director, Legislative Counsel Bureau
Mr. Lorne J. Malkiewich/Legislative Counsel
Mr. Fred Welden/Chief Deputy Research Director
OTHERS PRESENT:
Secretary of State Cheryl Lau
Chief Deputy Dale Erquiaga, office of Secretary of State
Ms. Leola Armstrong/Executive Director, Common Cause
Mr. Brian McKay/Nevada Republican Party
Ms. Jan Gilbert/League of Women Voters of Nevada
Ms. Gaylyn Spriggs
Ms. Janine Hansen/Nevada Families Political Action
Committee
Ms. Lucille Lusk/Nevada Coalition of Concerned Citizens
Ms. Juanita Cox
Mr. Jim Hulse/Chairman of Board of Governors, Common Cause
AB 496: Revises provisions relating to publication and dissemination of campaign material.
Assemblyman Lynn Hettrick, District No. 39, prime sponsor of AB 496, provided the committee with prepared testimony (Exhibit C). The bill, he explained, was directed at cleaning up campaign practices. The fiscal note would be insignificant.
Mr. Lorne J. Malkiewich, Legislative Counsel, explained a section of the bill had been amended which required advertisements run by candidates disclose candidates were responsible for paying for the advertisements and stating their name, mailing or street address on the ad. Subsection 1, lines 2 through 7, had also been added. He called attention to page 2, lines 3 through 5 which was the same kind of exception. The only people who could violate this section were political parties, committees sponsored by political parties and committees for political action.
Mr. Malkiewich called attention to Page 2, line 2 where the penalty was changed from a misdemeanor to a gross misdemeanor.
The possibility of jail time affected the fiscal note. He explained the third change provided a civil remedy for violations.
Mrs. Williams questioned if the words or person could be added on Page 1, line 3 after the word action.
Mr. Malkiewich thought this would be a serious restriction of first amendment rights. A candidate could not screen anything said on his behalf by a private person. The bill tried to limit to groups such as PAC's, political parties and committees formed by political parties, which could be identified with the candidate or issue and which would be required to register and submit to certain restrictions in order to limit impact on first amendment rights.
Mrs. Williams pointed out any one of the above groups could get one person to do scurrilous kind of mailing, and the bill would not affect them, therefore, she was not sure what would be changed by the legislation.
Assemblyman Hettrick, responding to Mrs. Williams, said this was considered when the bill was drafted, however it was felt the person's first amendment speech rights outweighed an individual who was willing to do the mailing with his own funds. By making it illegal in the bill, it was hoped groups named would not fund an individual.
Mrs. Williams agreed with Mr. Hettrick a person's free speech rights should not be limited and asked if language should be inserted to create investigation of unidentified anonymous mailers since a candidate, not knowing who did the mailing, would have no way to make a disclosure.
Mr. Malkiewich interjected NRS 294A was enforced by Secretary of State and Attorney General.
Mr. Hettrick thought instead of a fiscal note type of approach using investigators, the issue could be addressed because of the federal postal laws.
Mr. Scherer queried Mr. Malkiewich if a separate subsection should require the candidate to report it as a contribution.
Responding to Mr. Scherer's inquiry, Mr. Malkiewich said the committee who prepared the piece should not be liable because the candidate failed to report. He thought the responsibility of the political party or committee should be to report to the candidate the amount of the expense so the candidate could then report it on his financial disclosure statement.
Mr. Humke asked for Mr. Malkiewich' theory of regulation of speech of political parties, committees, and PAC's, and he further asked if the organizations had a lesser interest in free speech than an individual.
Responding to Mr. Humke's question, Mr. Malkiewich said, "No" and explained the groups were organized groups in the candidates camp and therefore should have responsibility to the candidate and the candidate should have responsibility for actions by the groups. He elaborated that a candidate could not be responsible for what every citizen in the district, state or country said or did in respect to his candidacy, but the candidate should have input into what his party published or released on his behalf. Mr. Malkiewich further declared these groups collected money from citizens, and the collection was subject to regulation (amount contributed, amount spent).
Mr. Humke said he would not vote to add person to the list, but he declared his support of AB 496. He noted activities and groups were regulated but asked if content of their speech was regulated. Mr. Malkiewich's answer was "No." To the extent the speech was untrue, slanderous or intended to harm the candidate and known to be untrue, it was actionable under the slander and libel laws, he added. The first amendment did not give per se protection to this type of speech. The legislation was distinguished in that these were people theoretically on the candidate's side. The candidate was regulating speech made on his behalf. The candidate was controlling what was said on his behalf by his party and by the PAC's formed to support the candidacy.
Mr. Humke continued his line of questioning and asked if someone could make an association argument that someone was preventing an individual's right to association under the first amendment. Freedom of speech and freedom of association were fundamental rights, and when legislation was done in this area, legislators would have to be careful, he emphasized. The things being regulated by AB 496 were consistent with the purpose of the association.
Mr. Hettrick made a point that legislators were not going to control their own groups. AB 496 Page 1, line 5 said the candidate had to expressly approve, and he emphasized prior statements made in his testimony (Exhibit C).
Mr. Humke referenced Page 2, line 11, civil action, and asked if a civil action could be brought when an individual felt a violation had occurred. Mr. Malkiewich assumed it would be the same as forfeiture proceedings where no requirement existed for conviction for civil forfeiture.
Mr. Price called attention to NRS Page 8257, campaign practices, and stated NRS Statute AB 496 should be corrected from NRS 294A.120 to NRS 249A.120. He questioned the definition of "publish," on page 2, lines 24 through 29, and "opponent," which Mr. Malkiewich felt was not necessary to define. Discussion ensued between Mr. Price and Mr. Hettrick regarding clarification and intent of Page 1, lines 2 through 7.
Mrs. Williams clarified the candidate would have to give permission; after permission was granted, the candidate would be required to obtain the financial report from committee or party, and report the information. Since the information was reported on a disclosure from another source, she asked how the candidate would be assured double disclosure did not occur.
Discussion ensued between Mr. Hettrick and Mrs. Williams with questions raised concerning disclosure of candidates, possible failure of the candidate to receive information, and the candidate's responsibility to conform with the law.
Mrs. Williams referenced a letter (Exhibit D) from Common Cause relating to the ethics code and "Code of Fair Campaign Practices," which Mrs. Williams told the committee she sponsored and asked to be mandatory. She was told it would be unconstitutional, and asked Mr. Malkiewich for his comments on the relationship to AB 496. Mr. Malkiewich stated AB 496 would not stop the opponent from speaking; it controlled the candidate's own speech and pieces on behalf of the candidate. In the "Code of Campaign Practices," it was said the opponent, also a candidate for office, would be stopped from saying something. The problem would be regulation of speech of a candidate which would create a higher burden. Mr. Malkiewich continued if the fair campaign practices was limited to "you shall not slander an opponent, you shall not knowingly print a piece which you know to be untrue," he believed it would be defensible. Mr. Malkiewich then broadened his explanation of free speech as it applied to candidates and opponents.
Mrs. Williams asked how the concept of being a public figure applied since it was her understanding public figures had no recourse. Mr. Malkiewich acknowledged being a public figure was a higher standard to overcome as public figures had a lesser degree of protection from slander. Mr. Price asked if a public figure was considered to be anyone who was well known, and discussion ensued regarding public figures and their rights.
Ms. Leola Armstrong, Executive Director, Common Cause, provided the committee with prepared testimony (Exhibit D) and urged the committee to pass AB 496.
Mr. Brian McKay, Nevada Republican Party, testified in support of AB 496 and discussed the 1992 elections in Nevada. He felt AB 496 was non-partisan and did not legislate regulation of speech, content of speech, or related association issues. AB 496 legislated basic accountability and disclosure which would be good for the political system. He thought AB 496 would put political parties on the same level, and the public would be willing and ready to accept the change. Concerns raised by committee were addressable and could be resolved, and he urged the committee's support.
Ms. Jan Gilbert, representing League of Women Voters of Nevada, urged the committee to support AB 496.
Ms. Gaylyn Spriggs, representing herself, spoke in favor of AB 496. She suggested a change of language in Section 1 to assure an accurate description of what was meant and an accurate description of the newsletters such as Eagle Forum, CPE, Teachers Union and other newsletters which contain lists of candidates which the newsletters support and do not support and where they stand on issues. She acknowledged the difficulty in describing what newsletters did but felt it would be worthwhile.
Ms. Janine Hansen, representing Nevada Families Political Action Committee, a sister organization to Eagle Forum, submitted Exhibit E, and told the committee she was opposed to AB 496. Her concern was it interfered with free exercise of political action. AB 496 did not exempt the Nevada Families Voter Guide (Exhibit E) to allow their publication of positions taken by candidates on issues and endorsement of candidates because Nevada Families was a registered Political Action Committee in Nevada.
Ms. Hansen pointed out a section reprinted in Nevada Families from the Speak Out Taxpayers Organization which gave the voting record of candidates on specific tax and spend issues from the last election. She asked if this type of reporting would also be covered under AB 496 as it was not exempted and protected as free speech, and she felt it violated free speech. Candidates were not asked for their permission for information published in the voter guide or endorsement lists, and Nevada Families did not feel they were obligated to ask permission, she stated.
She told the committee Page 2, line 11 civil action was intimidation and would have a chilling effect on political action by individual citizens. Although she felt AB 496 was important and the purpose was positive, even though she understood the committee's concerns and what the committee was attempting to do, she felt the greater good would be to allow citizen participation in the electoral process. She believed AB 496 would be challenged in court as a violation of freedom of speech.
Mrs. Williams asked if mailings other than the newspaper were done, and Ms. Hansen replied endorsement lists and mailings for individual candidates were sometimes done.
Mr. Garner, while he did not wish to infringe on first amendment rights, reminded Ms. Hansen candidates also had first amendment rights and pointed out erroneous information which had been printed in Nevada Families regarding his views on certain issues and which had been distributed to people in his district. He further reminded her that he paid for the postage and labor to correct the mistakes made by her paper.
Ms. Hansen acknowledged the mistake, apologized and pointed out efforts made for correction by her organization. She stated it was their objective to be as accurate as possible, but freedom of speech entailed risks.
Ms. Lucille Lusk, who represented Nevada Coalition of Concerned Citizens, spoke in opposition to AB 496. However, she felt there was value in AB 496 and was sympathetic to the goal of AB 496. She believed Section 1, subsection 1 prohibited independent action of groups of independent citizens. Nothing could be published unless someone had prior express approval of what was published relating to a candidate. One of the purposes of the group was to expose which AB 496 appeared to prohibit. She felt the legislation would be a significant infringement on free speech and the right of association. She felt "expressly approved" was a strong statement, and she discussed the bill was said to apply only to groups working for a candidate and pointed out her group worked for citizens and not candidates, informing citizens of voting records and candidates' positions. She felt AB 496 would infringe on the work.
Concluding her testimony, Ms. Lusk discussed civil action and questioned how much civil damages were for losing an election. She requested the committee rework the bill and be certain it did what the committee intended and did not infringe on free speech rights.
Adding to Ms. Lusk's closing statement on civil damages, Mrs. Williams questioned how anyone could be paid for having their reputation destroyed.
Ms. Juanita Cox, opponent of AB 496, referred to Page 1, line 5, candidate having approval of publishing, and she stated she did not see how the other candidate would give anyone permission to print some of the material even though it was the candidate's own record. She also referenced Page 2, starting at line 14. She realized the intent was good but expressed her concern the candidates' records could not be published.
In a concluding statement, Mr. Hettrick declared everyone who testified agreed with the intent, and he suggested language could be changed. He thought it would be helpful for a candidate to at least be allowed to proofread lists to be published. He felt there was common ground and expressed his wish to work with the bill if the committee saw fit.
There being no further testimony, Chairman Williams closed the hearing on AB 496 and appointed a subcommittee of Mr. Dini, Mr. Porter and Mr. Humke to work with Mr. Hettrick on questions raised.
AB 505: Makes various changes to provisions regulating campaign practices.
Secretary of State Cheryl Lau testified in favor of AB 505 and introduced Chief Deputy Dale Erquiaga. She summarized the effect of AB 505 in that it would allow accountability for PAC's, political parties and candidates; clarity in further defining PAC's, personal use of campaign money, and campaign disclosure, a lower reporting threshold. Loopholes were in the present laws, because of bogus contributions and unreported contributions. Constituents questioned who financed a particular petition drive, and candidates could not answer. She then gave a brief outline of AB 505 and discussed sections not covered in AB 528 legislation.
Discussion ensued between Mrs. Williams and Secretary of State Lau concerning Sections 6, 7 and 12 of AB 505. Secretary of State Law then briefly explained AB 505.
Mrs. Williams and Mr. Scherer discussed Section 15 which required a PAC to file a $50 filing fee with the Secretary of State's office and which initially would bring in income of about $10,000. Mr. Scherer asked if charging a fee would violate the first amendment of free speech.
Deputy Dale Erquiaga answered Mr. Scherer's question by stating while it was an issue, the counsel equated the fee to a filing fee for running for office, and he detailed the statement.
Mrs. Williams and Mr. Erquiaga discussed Section 18 as it pertained to disclosure, and Mrs. Williams asked Mr. Erickson to check if disclosure was already in the law. Mrs. Williams also asked the subcommittee (Mr. Dini, Mr. Porter, Mr. Humke) to look at AB 496 to see if duplication existed.
Secretary of State Lau, referring to Section 18, stated disclosure referred to who paid for the campaign materials. The second part of section 18 included disclosure on petitions because questions had been raised as to who financed a petition drive. She concurred with committee clarification on those sections which might reiterate what was happening.
Mr. Dini asked Secretary of State Lau if there was any way her office or anyone checked on the contributions, and Mr. Dini stated he had long suspected not all candidates turned in all the contributions on their list. He asked if a crosscheck was possible.
Discussion ensued between Mr. Erquiaga and Mr. Dini regarding crosschecks with Mr. Erquiaga saying Nevada did not have a crosscheck between candidate's reports and PAC's. Mr. Erquiaga noted this was done at the federal level. He pointed out mailers could be sent by the candidate or the party. He discussed billboards in rural areas of Nevada which were not required to be reported because a billboard cost was under $500.
Mr. Petrak referred Secretary of State Lau to Page 9, Section 14 $50 filing fee.
Mr. Erquiaga answered under existing law, a registry was required of any organization which conducted activities designed to affect the outcome of any candidate. However, he stated there was no penalty if the organization did not register.
Mrs. Lambert referenced Section 1 and asked Secretary Lau how a candidate would know whether a political action committee was registered with her office. Mrs. Lambert cited receiving checks through the mail from people the candidate would not know.
Secretary of State Lau said many of the PAC's would not register with the Secretary of State whose office would not have information on the PAC's to give to constituents who requested information. This was one of the reasons stricter accountability was wanted.
Mr. Erquiaga discussed a system where each PAC would be assigned a number and the candidate's form would require the number when the candidate reported the contribution. If the PAC did not have a number the candidate could return the check.
Mrs. Lambert and Mr. Erquiaga briefly discussed anonymous contributions.
Mrs. Williams asked if there would be a provision on the registration and the filing fee for a waiver for organizations where $50 would be an impossible amount of money for them to raise. She felt people should not be denied their voice because of their inability to raise $50. She asked if a provision existed to waive the fee for senior groups, for example.
Secretary of State Lau stated under 294A.3380, she had broad authority to do that.
Mr. Humke referenced Section 15 and asked if Secretary of State was using the implied consent for acceptance of service of process by the Secretary of State.
Mr. Erquiaga answered, "Yes," the language was exactly as it was in the statutes.
Mr. Jim Hulse, Chairman of Board of Governors, Common Cause, spoke in support of AB 505. He expressed approval of lowering the threshold from $500 to zero. He further expressed agreement with Mr. Dini that pursuit of campaign money for these offices was ridiculous, and they were concerned the candidate had to raise $75,000 or $100,000 to run. He felt AB 505 closed some of the loopholes in reporting. He thought political parties and their committees should reveal more fully where their money came from. He felt these two items would greatly improve the laws of Nevada as campaign finance reporting laws in Nevada were poor compared with those of most other states.
Mr. Hulse noted Justices of Supreme Court seemed to be exempt from the limit and stated his concern in view of the last election in the Supreme Court races. Otherwise he felt it was a very good bill.
Mrs. Williams said the committee had never exempted the Supreme Court or judges from anything. And any exemptions which did occur had not occurred on this side of the building.
Mr. Price addressed Mr. Hulse regarding costs of assembly races and stated he spent $55,000 last year which was probably right in the middle. In California the average assembly race was one million dollars. Mr. Hulse agreed that amount of money was obscene. In his opinion the amount legislators were paid and the amount they received for expenses were far too low. But when campaign contributions were raised, it cast a cloud on the entire system.
Ms. Janine Hansen, representing Nevada Families Political Action Committee, questioned Page 1, line 16 regarding circulating a petition and asked if this applied to those who were seeking to form a new political party as well. Mr. Erquiaga replied it did.
Ms. Hansen testified against AB 505 stating the more reporting requirements placed on individual candidates, the more difficult it was for candidates with little money who did not have the support of the party to participate in the election process.
She discussed fees which could be very difficult for some PAC's with limited resources to pay, and Mrs. Williams reminded her that Secretary of State Lau said fees could be waived. Ms. Hansen then said her concern was the factors which determined whether a particular organization should have the fee waived.
Mrs. Williams closed the hearing on AB 505. She appointed a subcommittee of Mrs. Evans, Mr. Petrak and Mr. Garner with Mrs. Evans to chair the subcommittee.
Mrs. Williams opened the hearing on SJR 7.
SJR 7: Directs Legislative Commission to appoint committee to continue review of Tahoe Regional Planning Compact.
Speaker Joe Dini, District No. 38, proponent of SJR 7, stated last interim he served on the committee which reviewed the Tahoe Regional Planning Compact. Much more cooperation had existed between the TRPA, property owners, the business people at the Lake and the legislature in the years there had been an oversight committee, Mr. Dini said, and he stated it was very important to keep communication open between the legislature and the TRPA.
The bill, he explained, stated the Legislative Commission was to appoint two senators and two assemblymen chosen from among the alternate members of the Legislative Commission to serve on the committee to review TRPA. The Senate amended the number to four which Mr. Dini thought was too restrictive. Mr. Dini asked the committee to amend SJR 7 back to the wording the subcommittee recommended which Mr. Welden said in 1991 called for seven members appointed by the Legislative Commission and retaining the committee as appointed in 1991.
Mr. Dini felt it was necessary for Nevada to be involved in the day-to-day review of the TRPA and urged the committee to pass SJR 7 with the amendment.
Mrs. Lambert noted seven members presently served on the committee and asked Mr. Dini if five members would be enough. Mr. Dini thought five would be enough, and the commission should appoint five interested legislators.
He called attention to the interest and support from the people of southern Nevada and told the committee people from southern Nevada wanted to serve on the oversight committee. Mr. Dini told committee one third of the money to operate came from Nevada and two thirds from California.
Mrs Williams stressed this was not an interim study; this was the Legislative Commission.
Mr. Dini again stressed the importance of Nevada being involved in TRPA and urged the committee to pass SJR 7 with the amendment.
ASSEMBLYMAN SCHERER MOVED TO AMEND AND DO PASS SJR 7.
ASSEMBLYMAN GARNER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
(ASSEMBLYMEN PORTER AND SADER WERE ABSENT AT THE TIME OF THE VOTE).
Mr. Price suggested the amendment to five committee members consist of three Assemblymen and two Senators.
Mrs. Williams asked Mr. Crossley and Mr. Erickson to get the amendment.
There being no further business to come before committee, the meeting was adjourned at 5:30 p.m.
RESPECTFULLY SUBMITTED:
BOBBIE MIKESELL
Committee Secretary
??
Assembly Committee on Elections and Procedures
May 27, 1993
Page: 1