Vol. 2, No. 5
.jpg)
Jan. 1, 2005
 |
 |
 |
 |
 |
 |
 |
 |
| . | |||||||
 |
CRIMINAL DEFENSE |
COPYWRITING
|
|
Contributions And Expenses Reports May Get Needed Oversight
Supreme Court Decision Gives Ethics Commission The Right To Review Financial Disclosure Reports For Compliance -- How About The Secretary Of State?
by Johnny Gunn
The Nevada Supreme Court reversed a District Court finding, and it appears that the State Ethics Commission did have the right to investigate wrong-doing by candidates and groups as far as their financial disclosure statements and contributions and expenses (C&E) reports are concerned. District Judge William Maddox of Carson City originally ruled that the ethics commission did not have the right to demand accurate and complete financial disclosure forms.
The case came to court because many politicians associated with the Independent American Party (IAP) have refused to fill out the forms, often either claiming they have the right not to because of the Fifth Amendment, the right to refuse to implicate one's self in an illegal situation. How filling out the forms would implicate them in an illegal situation might be something for the Attorney General to take a look at.
The question might however, be moot. The original decision at the District Court level dealt with the time when financial disclosure and C&E reports were turned in to the Ethics Commission, and specifically deals with the election cycle of 2002. The legislature changed the process recently and financial reports now go to the Secretary of State. According to Secretary of State Dean Heller, he does not have the right to question anything in the reports.
Heller has been adamant in saying that the only way a report can be scrutinized is if a complaint is filed by a citizen. Heller's representative, Steve George said, "The Secretary of State was part of the Supreme Court hearings, as a Friend of the Court." It isn't clear at this time whether or not the decision will allow the Secretary to investigate possible wrongdoing on his own.
George said there are current court cases that this decision might affect mostly dealing with IAP candidates who have continued to thumb their collective noses at the financial disclosure and C&E reports. According to George, it is possible in these upcoming and continuing cases, the district courts will look at and use the current Supreme Court decision to determine if Heller indeed does have not only the right but the obligation to review disclosure and C&E reports.
Heller's office has recently fined politicians for improper filing, and for illegally using campaign funds for personal use. In each of those cases, they came about because of complaints filed by citizens, not from a review of the forms by Heller's office.
The next biennial session of the legislature is scheduled to get underway early next month, and campaign law is expected to be a hot topic. Many legislators have found themselves at odds with disclosure and finance reporting, and for some, the laws governing campaign financing are vague, arbitrary, and confining. Many don't like the concept of the whole state knowing their finances or who contributes how much. It will take collective wisdom and strength to straighten out what many consider a political pig trough.
With the Supreme Court ruling comes possible fines and other penalties. The Ethics Commission found many IAP candidates were in violation of the law, and fines would start at $25 per day for failure to file the C&E forms. As many as 25 candidates may be in violation of the statutes. The fines max out at $575 per day, and these alleged offenses go back at least two full years.
In 2002 when the Ethics Commission was responsible for financial disclosure forms, according to the Supreme Court brief, "instead of filling out the forms and providing the information requested, each respondent filed with the Commission a 'Notice in lieu of Statement of Financial Disclosure' and/or simply wrote on the form, 'I plead the 5th'."
According to the Court, the notices were nearly identical to each other, asserting among other things that the Commission is "violative of unalienable God given rights." And, the Court said, some said the forms were "A conspiracy to establish a Civil Religion." The Ethics Commission found the candidates in violation of NRS 281.561. The Supreme Court upheld the Commission.
Along with possible changes in how campaign financing is reported, there are also calls for changes in the laws governing the collection of petitions. Heller has been accused of acting capriciously and arbitrarily in the handling of petitions. Rules governing how signatures can be gathered, and by whom, are expected to be at the forefront of legislative review.
Heller has struck down several petitions, some for lack of signatures, some for the collection process, and some for what are called arbitrary decisions not found in the law. At least nine petition related bills are supposedly in the process of being written.
According to the Secretary of State, he has simply followed the advice of the Attorney General, and in some cases gone to the courts for direction.
Two initiatives in particular have drawn the ire of those wishing to get their petitions before either the public or the legislature. A petition allowing individuals the right to have small amounts of marijuana in their possession, and one to regulate smoking in public places in the state were dismissed by Heller arbitrarily, they say.
According to Heller, he did so after Attorney General Brian Sandoval said there were not enough signatures on the petitions. Those distributing the petitions said when they began the process they were told they would need a specific number of signatures, based on the election of 2002. When they turned the petitions in, the number required had climbed; Sandoval and Heller saying, the new number was based on the election of 2004. "They changed the rules in the middle of the game," the groups charge.
"Petitions will become an increasingly important part of the process," Heller says, "because these big money groups would rather gather signatures than lobby legislators."
Millions of dollars were spent in television advertising during this last election cycle, for initiative petitions. More than $9 million is the estimate for advertising for questions 3, 4 and 5. Three quarters of a million dollars was spent on the marijuana question, and more millions were spent on the two education initiatives.
Heller has lost several court cases involving the initiative process, some at the state level, some at the federal bench.
There are problems with the initiative process that are rarely discussed. One is what happens now that the electorate has called for a constitutional amendment dealing with minimum wage. That was passed in 2004 and will be on the ballot again in 2006. If passed, there will be a constitutional amendment setting the minimum wage at $6.15 per hour.
What happens when a few years down the line, $6.15 is pitifully low and someone wants to change the provision to a higher figure? Wait. It's a constitutional amendment. The legislature will not be able to simply raise the minimum wage. The constitution will call for $6.15 with no provision to raise it. It was a feel-good petition that will cause many problems in years to come. This is the kind of law that should be handled in the legislature, not by initiative petition.
There are some serious individual rights involved in all these questions. Do we have the right to know the finances of our elected leaders? Do we have the right to know who contributed to a candidate's campaign, and how much was contributed? Should we allow ourselves to be manipulated by local and national organizations that spend millions of dollars for initiative petitions instead of them going to our legislature and gaining passage of measures they are promoting?
Should the Secretary of State be required to validate C&E reports? Or just collect them and maybe they'll go away. Who cares anyway? Did the Supreme Court's decision make the validation of these reports mandatory? Your individual legislator will be glad to know your feelings on these matters.
The Court said, "There is nothing vague about statutes that require a candidate for public office to file with the commission" those financial statements. What's missing right now, it appears, is someone to be responsible for seeing to it that the forms are filed accurately, and when not in accordance with the law, that charges be brought.
Why has that been so difficult to understand?