MINUTES OF THE meeting
of the
ASSEMBLY Committee on Elections, Procedures, and Ethics
Seventy-First Session
March 6, 2001
The Committee on Elections, Procedures, and Ethics was called to order at 4:01 p.m., on Tuesday, March 6, 2001. Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Ms. Chris Giunchigliani, Chairwoman
Mr. Bob Price, Vice Chairman
Mr. Bernie Anderson
Mr. Douglas Bache
Mr. Bob Beers
Mr. Greg Brower
Ms. Barbara Buckley
Mr. Joseph Dini, Jr.
Mr. Lynn Hettrick
Mr. Richard D. Perkins
Ms. Kathy Von Tobel
COMMITTEE MEMBERS EXCUSED:
Ms. Vivian Freeman
GUEST LEGISLATORS PRESENT:
Assemblywoman Marcia de Braga
Assemblywoman Dawn Gibbons
STAFF MEMBERS PRESENT:
Scott G. Wasserman, Committee Counsel
Michael Stewart, Committee Policy Analyst
Ann M. VanNostrand, Committee Secretary
OTHERS PRESENT:
Bonnie Weber, Representative, Nevada Republican Assembly
Lucille Lusk, Representative, Nevada Concerned Citizens
Janine Hansen, President, New Eagle Forum
Meeting opened with a quorum with others to be marked present as they arrived. Assemblywoman Freeman was excused. Chairwoman Giunchigliani called for approval of the February 8, 2001 meeting minutes.
ASSEMBLYMAN BACHE MOVED TO APPROVE THE FEBRUARY 8, 2001 MINUTES.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
PASSED BY QUORUM PRESENT. Not present for the vote were Assemblywoman Buckley, Assemblywoman Freeman, Speaker Emeritus Dini, Assemblyman Hettrick, and Speaker Perkins.
Chairwoman Giunchigliani announced a copy of the minutes were kept in the meeting room, though personal copies were available to committee members as well.
She continued with committee introduction of two BDRs.
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ASSEMBLYMAN ANDERSON MOVED TO INTRODUCE BDR R-1294.
ASSEMBLYMAN BEERS SECONDED THE MOTION.
MOTION APPROVED. Assemblywoman Von Tobel opposed. Not present for the vote were Assemblywoman Buckley, Assemblywoman Freeman, Speaker Emeritus Dini, Assemblyman Hettrick, and Speaker Perkins.
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ASSEMBLYMAN BACHE MOVED TO INTRODUCE BDR 24-839.
ASSEMBLYMAN BEERS SECONDED THE MOTION.
MOTION PASSED. Not present for the vote were Assemblywoman Buckley, Assemblywoman Freeman, Speaker Emeritus Dini, Assemblyman Hettrick, and Speaker Perkins.
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Assembly Bill 211: Revises provisions governing election of candidate to partisan office. (BDR 24-681)
Assemblywoman Marcia de Braga, Assembly District 35, spoke on A.B. 211, relating it was essentially the same bill presented during the 1999 Session by Assemblywoman Dawn Gibbons. The bill changed the process where if one of three candidates of the same political party ran for the same office, the candidate who received 50 percent plus one vote during the primary would automatically be declared the winner.
She agreed there were pros and cons on both sides of the issue, yet her contention was that the bill disenfranchised too many people. For instance, those not belonging to a specific political party would not have a candidate for whom to vote. The arguments in favor of leaving it as written were political parties had the right to choose their candidate, and that candidate should not have to run against a same opponent twice. However, a look into the bigger picture declared the importance for voters to have a fair choice, as in any other case. Currently, if there were only two candidates who ran for the same office and belonged to the same political party, they advanced automatically to the general election. Mrs. de Braga stated the bill was a mechanism where no one became disenfranchised, no matter what political conviction they represented.
With no questions for Ms. de Braga, Assemblywoman Gibbons voiced her opinion that the bill represented open government and allowed more public servants to become involved in the political process. She thanked Mrs. de Braga for bringing the bill back, stating A.B. 211 of the Seventieth Session had been her highest priority. Ms. Gibbons shared that many people in her district were not concerned about the political party a candidate represented. Their concerns centered on the candidate being a good public servant. In her case, she ran against Ms. Patty Cafferata, who also voiced support for A.B. 211 of the Seventieth Session. Ms. Gibbons stated she won the primary by 50 percent plus nine votes. She stated that she felt cheated because there was no opportunity to interact with the general election voters. Plus, without opposition, it was difficult to earn the respect of the voters, nor did the voters find it necessary to become educated regarding their candidate’s political convictions.
Mrs. de Braga stated she requested the bill as the result of the county commissioner race in Fallon, Nevada. There was great public outcry because three candidates of the same political party signed up for the office, with one eventually withdrawing. Unfortunately, the individual withdrew too late for his/her name to be removed from the ballot. In essence, there was a two-person race that should have gone directly to the general ballot and did not because of the time frame in which the third candidate pulled out of the race. To comply with Nevada law, with only two candidates actually running, there should have been no primary, only a general election.
Chairwoman Giunchigliani stated she did not personally care for the bill and as drafted, it would not fix the commission problem. It had both good and bad points, and had been debated back and forth many times. Regarding the issue of disenfranchisement, the purpose of the primary was to select a candidate. She felt if a political party did not promote someone from their ranks to run for a specific office, it was no longer an issue of disenfranchisement; it was an issue of someone not taking the initiative to become organized or care enough to run for office. Chairwoman Giunchigliani stated she would reference her notes on the issues and share information gleaned with the committee as well as Ms. de Braga and Ms. Gibbons. She recalled studies, that until 1997, Nevada was one of the few states that did not have a law such as A.B. 211. She stated it was a worthy issue.
Assemblyman Anderson asked about increased costs to a city or county that included on the ballot those incumbents or new candidates of the same political party when there was no opposition. He voiced this concern, as there were several municipal governments who had opted to move balloting to the same time period as state and national elections.
Mrs. de Braga answered that it was mandated an unopposed or single candidate had to be put on the general ballot with or without competition.
Assemblyman Anderson was under the impression that the unopposed or single candidate needed only one vote. Mrs. de Braga stated that one vote over fifty percent would be all the winner of a three-way contest needed in the primary, and one vote in the general election. Also, the party had a right to select a candidate. She referenced the minor, nonpartisan parties who were not allowed a candidate on the ballot as they were excluded by the fact they had not received a certain percentage of the vote during the primary. Those were the individuals disenfranchised. The other argument held true if there were just two political parties involved.
Janine Hansen, State President, Eagle Valley Forum, remained neutral. She testified the issue was revisited in Senator Neal’s district by lawsuit and/or challenge in the 2000 elections. In Nevada, minor political parties had no primary candidate(s) on the ballot; those candidates are chosen by convention. In Utah, minor political parties held caucuses through which a candidate was selected, taking 60 percent of the caucus vote to place a candidate on a primary ballot.
Ms. Hansen felt when public taxes were used to finance an election, the public had the privilege, during the general election, to vote for all candidates. If the political party paid, that was another issue altogether. She felt it was not a private primary for a specific political party when state taxes paid the bills. The issue was of election law differences in all states, though in Nevada there remained a separate primary system for minor parties.
Chairwoman Giunchigliani closed the hearing on A.B. 211. The gavel was handed to Vice Chairman Price.
Assembly Bill 227: Revises definition of committee for political action. (BDR 24-917)
Chris Giunchigliani, Assemblywoman, District 9, stated A.B. 227 was drafted through conversation with a constituent who reported on a news article written by John L. Smith in Las Vegas regarding Political Action Committees (PAC). Mr. Smith’s point was, “If it walks like a PAC and talks like a PAC it ought to be filed as a PAC.” In researching the statute, there were problems not addressed. She stated she was not sure if A.B. 227 was yet finalized, but wanted to work with the Attorney General’s Office as a result of Kateri Cavin’s Attorney General’s Opinion, which was used by Mr. Wasserman and herself in drafting the language of who was a PAC and when an organization should be filed as a PAC.
A dollar threshold was adopted and modeled to meet federal guidelines. Through Nevada Revised Statutes (NRS) 294.A0055 committee political action was defined, changing it to any organization that received $1,000 in a calendar year, made $1,000 total during that year with an expenditure of $1,000. Not all persons were PACs but all PACs were persons. The definition was obtained via NRS 294A.009, “A person includes a PAC, but a PAC does not include an individual.”
The PAC subject was listed in three different sections of the Nevada statutes:
Several years prior a problem developed because of lack of definition on how to recall and amend a form filed with the Secretary of State.
Ms. Giunchigliani stated the consensus was to put the dollar threshold into the bill. She felt, though, that a definition of “organization” was needed. She did not want to capture all citizens, but there was a need that focused on checks and balances for groups organized as a group, who raised funds and then turned the money over to group that had registered as a PAC. The purpose of the bill was to close any loopholes.
Speaker Emeritus Dini asked if Ms. Giunchigliani or Mr. Scott Wasserman, Committee Counsel, had checked the 2000 law on PACs, as related to federal issues. Ms. Giunchigliani stated Mr. Wasserman would comment on that, continuing that the federal law was used as a base for A.B. 227. Speaker Emeritus Dini stated he had funds left over from the Speakers PAC and was required by the Internal Revenue Service (IRS) to complete all forms necessary for reporting committee income and expenditures.
Ms. Giunchigliani agreed the IRS intervention was uncomfortable for anyone affiliated with an organization. She did not intend to have organizations become involved with IRS intervention and suggested working with caution.
Assemblywoman Buckley requested a letter be drafted by the committee and sent to Nevada’s congressional delegation to explain state legislator’s disclosure policies with the Secretary of State. Thus, the federal requirements and IRS reporting should become a moot point when the candidate and/or organization(s) considered none of the funds raised income.
Ms. Giunchigliani agreed with Assemblywoman Buckley. Changes were made during the 1999 session for non-disclosure by an individual who held an unpaid position on a board, due to the fines imposed by the ethics committee against that board member. In addition, there was federal legislation, which unknown to candidates required them to obtain a federal employer tax number and filings. Campaign contributions are not income and candidates should not be required to fill out forms.
Assemblyman Hettrick agreed regarding the IRS issue. He felt federal legislation was being drafted to remove the provision because it struck far deeper than originally intended. He then shared the definition of “Committee for Political Action” meant any organization, thus The Committee to Elect Lynn Hettrick would become a PAC and he had to file not only as a PAC but as a candidate. Reflecting on other organizations, such as the Nevada State Employees’ Association (NSEA), that made direct contributions and collected their money through dues. Thus, because they collected more than $1,000 and made contributions of more than $1,000 to a specific person, it seemed to him NSEA had to file as a PAC. He felt A.B. 227 defined other organizations that were not intended to be affected by the bill.
Ms. Giunchigliani stated she did not want to undo what had been accomplished during past sessions. She felt business organizations might also be affected. She did clarify that NSEA dues did not pay for PAC, but they were separate entities monitored by voluntary contributions. She felt that just because you did not file as a PAC should not excuse you from being a PAC. All areas had to be weighed before there was a final decision regarding the entire issue.
Mr. Wasserman clarified the definition of the word “organization” as used by a committee for political action included any organization. Presently, there was no limit on expenditures if the organization lobbied to affect the outcome of a primary, general, or special election, or a question on the ballot. At that point the organization was considered a committee for political action. Thus, the bill limited organizations to $1,000 in a calendar year. Without the above definition, an organization also meant an association of two or more persons.
Assemblyman Hettrick then assumed that, based on Mr. Wasserman’s definition, he would have to file as a PAC as well as a candidate. Mr. Wasserman felt if Assemblyman Hettrick’s committee was organized and collected contributions and had expenditures designed to affect the outcome of the election, the committee would have to register as a Political Action Committee and file the required reports. Mr. Wasserman felt the Attorney General’s Office had difficulty with the bill because it included any organization and any amount. Organizations would, through A.B. 227, be limited to $1,000 or more.
Assemblyman Hettrick countered that the current definition said, “Committee for political action meant an organization which received contributions and made contributions to candidates or other person.” That to him meant everyone who ran for office should have filed a PAC report, based on the law presently in effect and the proposed bill.
Assemblyman Brower asked if there was another section of the law that stated a candidate did not meet the definition of a committee. Assemblywoman Giunchigliani answered most candidates state, “A committee for . . .” though she had never come across anything that exempted candidates or contradicted A.B. 227.
Janine Hansen, State President, Eagle Valley Forum, and Chairman of the Nevada Family Political Action Committee, stated regulations allowed organizations to spend any limit if contacting their own members. She wondered if the bill would capture those organizations and force them to organize into a PAC. It was a difficult burden for small organizations run totally by volunteers to comply with election laws. She was definitely against the election laws because she felt they violated the First Amendment. Also, she did not want government to regulate free speech on political issues, particularly because often times it was in the interest of the government to put restraints on those that might oppose them. She was adamantly opposed to campaign reform and reporting requirements.
Ms. Hansen stated anything that dampened the opportunity for people to become involved was a serious hindrance to the political process. She stated that after the change in the federal election laws, there was a tremendous reduction in the number of people participating in elections. It also became more difficult to field candidates because of the onerous regulations in place. She resented the non-regulation of the press, not having to report who they endorsed via their editorial pages. Yet if an individual citizen, in association with others wanted to participate in the process, they had to report to the state and federal governments. She believed organizations, like the press, should equally be allowed equal freedom of speech. She stated the reason for the laws on individuals and PACs was because the press wanted regulation as long as it did not affect them. Concern was again voiced on the impact of the bill on small organizations interacting with their own members.
Ms. Hansen discovered that the press got around the laws of endorsing candidates by paying for the endorsements with funds received from advertisers. Unfortunately, the small volunteer organizations had their freedom of speech severely dampened by the most recently passed legislation. She closed with writing by George Will (Exhibit C):
The premise is that Americans engage in too much communication of political advocacy, and that government, that is, incumbents in elected office, should be trusted to decide and enforce the correct amount. This attempt to put the exercise of the most elemental civil right under government regulation is the most frontal assault ever mounted on the fundamental principle of free speech of our nation’s founders.
Chairwoman Giunchigliani asked if Ms. Hansen was referring to the independent contribution section. Ms. Hansen stated she was unsure and she might be wrong. In checking with the Secretary of State’s Office she was told small organizations or those that contacted their own members did not have to file as a PAC. She did not see an exception in the state law, feeling the former was a decision made by the Secretary of State. Ms. Hansen stated a small organization that sent out a newsletter exceeded the $1,000 threshold through printing and postage alone.
Chairwoman Giunchigliani stated Ms. Hansen had voiced a legitimate issue the committee would take under advisement.
Assemblyman Hettrick agreed with much of what Ms. Hansen shared, but pointed out that A.B. 227 actually raised the threshold and helped protect many smaller organizations. He agreed also the law should read the intent was not to affect an organization with internal communications. He felt also businesses or a union that published newsletters would then fall under the law. A firm definition of “organization” as pertained to the bill might be more complicated than originally thought.
Assemblyman Brower stated the last sentence of the existing statute exempted the committees calling for the recall of a public officer. Was there any background research completed prior to that exemption.
Chairwoman Giunchigliani was unaware of the reasoning for the exemption. Mr. Wasserman offered to provide a legislative history, which required research into the 1989 session.
Chairwoman Giunchigliani stated a notice of intent had to be filed, but outside of that, she was not sure. She stated that for such action, the committee was required to be registered but that did not explain why the exemption from reporting dollar amounts.
Bonnie Weber, representing the Nevada Republican Assembly, agreed with Ms. Hansen’s testimony. She had concerns about the definition of “organization.” Her organization was very small but would in the future like to support candidates. She approved of the committee sending a letter to Nevada’s federal representatives. Her organization’s goal was to reduce the size and scope of government overall.
Lucille Lusk, representative for Nevada Concerned Citizens, stated the bill appeared to include fewer organizations rather than more. She asked exactly what the committee overall would accomplish with A.B. 227.
Chairwoman Giunchigliani stated, as the sponsor, the public wanted simple disclosure, yet the committee wanted to avoid loopholes. She stated the committee would hold a work session on the bill. Also, she felt that all in political or public office wanted to allow the public to know that if money was raised, it was accounted for.
Janine Hansen, President, Nevada Eagle Forum, noticed there was no definition of what it meant to participate in an election. In the federal regulation it was narrowed, i.e., unless it was actually said in a particular ad or some kind of publication to “Vote for . . .” you could quote the issue. That would not fall under federal disclosure laws as it did not have the specific advocacy words as described by the Supreme Court when voting for a particular candidate. The other definition would be on an issue on an educational basis, and not fall under the narrow federal and Supreme Court definitions. Without definitions it put people in jeopardy.
Assemblyman Hettrick disagreed with Ms. Hansen. “Vote against . . .” did not have to disclose; “Vote for . . .” required a disclosure. By saying, “Vote against . . .” the person was, in essence, saying, “Vote for . . .” the other candidate or issue, thus getting out of the disclosure. He preferred the wording as it stood, “If you do something to affect the outcome of an election, disclosure was mandatory.” The public hated the soft money loophole and while talking about any position, that supported a candidate who supported the position or issue. The public was more interested in disclosure than the amount quoted.
Ms. Hansen replied the Supreme Court addressed that question in Buckley vs. Vallejo, therefore, without the organization facing court challenge; the broad definition could not be enforced. If left with the Supreme Court standard, she had no questions but the legislation in question did not afford the people the standard decided by the court.
Assemblyman Hettrick responded that all should disclose and was not in favor of changing the law until someone sued. Ms. Hansen asked if the current practice was to have that broad of a sweep. She did not believe an organization that published information without advocating a particular result of “Vote for. . .” fell under the current practice of that definition. Also, smaller organizations had little funds to challenge such a law. She stated it violated the federal lines drawn in 501C 3’s and 501C 4’s, because within a 501C 4, a particular issue was advocated without saying, “Vote for . . .”
Assemblyman Anderson agreed in part with Assemblyman Hettrick, the concern being how the loopholes had entered into the picture in terms of groups that came out putting their 501Cs in jeopardy. Without disclosure, that fact would not be learned. He felt the federal legislation was not very specific due to the Tenth Amendment, which left those types of questions open to the state to more narrowly define the circumstances for the state itself. He said it was unethical to protect oneself through the Tenth Amendment and then brush it aside when the state addressed the issue as defined in A.B. 227.
Ms. Hansen stated the loophole was left open for the states to make their own decisions. She was not sure of the court’s jurisdiction over state legislation, yet felt much of election law litigation was directed by state law, going to the federal courts for further definition. She was not sure regarding the disposition. She also felt Assemblyman Anderson was probably right that Buckley vs. Vallejo was a federal decision and did not apply at all to the states, though there might be other subsequent decisions.
Assemblywoman Giunchigliani stated it was the Ninth Circuit Court that dealt with the issue of Express Advocacy. There was a fine line regarding the definition, which tied into an issue in Clark County where mailers were sent anonymously to the voters, thus avoiding the PAC legislation. She also said there could be no treading on a free speech issue either.
Vice Chairman Price closed the hearing on A.B. 227.
Chairwoman Giunchigliani announced that the Committee on Constitutional Amendments would meet upon adjournment in Room 3161.
The meeting was adjourned at 4:54 p.m.
RESPECTFULLY SUBMITTED:
Ann M. VanNostrand
Committee Secretary
APPROVED BY:
Assemblywoman Chris Giunchigliani, Chairwoman
DATE: