Of Note Nevada

A Tax By Any Other Name . . .

Over the weekend, the Reno Gazette-Journal ran an editorial suggesting that it's time for Nevadans to consider a corporate "margins" tax.  The Las Vegas Sun wrote that a coalition has formed to push for a margins tax via an initiative petition.  Unsuccessful legislation to enact a margin tax was considered by the Nevada Legislature in the first half of 2011, and was modeled on a similar tax enacted in Texas in 2006.

The Texas Constitution is similar to the Nevada Constitution in that both prohibit an income tax on individuals.  Members of a limited partnership in Texas recently filed a lawsuit alleging that the margins tax violates the Texas Constitution because it is (1) a thinly disguised income tax and (2) the individual income of each partner is their share of partnership profits which is being taxed.  (As a side note, the Texas margins tax has come in well under projections, and continues to cause political headaches for Texas politicians - read more here).

Many Nevadans similarly derive their individual income via a business entity such as a limited partnership, LLC or a pass-through corporation, meaning their individual incomes could well be within the scope of a margins tax - and also meaning the implementation of a margins tax to their income would raise constitutional issues. 

Dawn of a New Era for the Veto?

In 2009, then Governor Gibbons was criticized for vetoing a record 48 bills (8 of those bills pertained to the budget), surpassing the prior record of 33 set in the 19th century.   

In 2011, Governor Sandoval vetoed 28 bills, putting him in third place for vetoes by a Nevada Governor.

Much of the reason for the increase in vetoes can be traced to the fact that beginning in 2009 the Legislature was controlled by one party while the other party held the Governor's Office.  That has only happened three times in the past 50 years (1967, 1979 and 1981). 

So, has the Governor's veto power been overused in the last few years, or has it been historically underutilized by Nevada Governors?   Or has the context of Nevada politics changed to the extent that cooperation and conciliation is less likely between opposing parties?     

The Name Game

Some eyebrows recently raised in Nevada when the majority Democrat leadership changed the name of the former "Committee on Taxation" to the "Committee on Revenue."  But, the fact that caucus leadership may change a committee name is nothing new. 

For example, in Colorado the GOP recently took control of the state House of Representatives.  The change in control resulted in "energy" being dropped from the Transportation and Energy Committee, "labor" being dropped from the Business Affairs and Labor Committee, and "human services" being dropped from the Health and Human Services Committee.  Colorado Democrats immediately began criticizing the name change on the grounds that the renaming signaled a change in priorities for those committees.  See the full story here.

Of course, elections have consequences so it shouldn't be too big of a surprise that the Colorado House GOP leadership changed some committee names after winning a majority.  The difference in Nevada?  In 2008-2009, the Democrats held the Senate majority and utilized the Committee on Taxation.  In 2010-11, the Democrats maintained the Senate majority but changed the name to the Committee on Revenue.  So the recent name change is not related to a change in leadership - and time will tell if it actually does signal a change in priorities.

To Elect or Appoint Judges?

This fall Nevada voters will presented with a ballot question that would provide for the initial appointment of judges.  Currently, judges are elected and consequently need to raise money to fund campaigns.  The impact of campaign contributions on judicial impartiality, both real and perceived, is significant. 

 

The proposed reform would amend Nevada law to provide for the appointment of judges by the Governor from a list of candidates selected by the Judicial Selection Commission, followed by retention elections whereby the electorate can choose to retain or remove those judges.  Currently, judges are appointed in Nevada only when there is a vacancy in an existing term of office.  The upcoming ballot question would expand the appointment process beyond vacancies to the initial selection of judges.

 

In my former position in the Office of the Governor, I had the unique opportunity to observe and participate firsthand in the appointment of state judges to fill vacant positions.  During my time in the Office of the Governor, Governor Gibbons appointed six judges to the bench, three to the Clark County District Court and three to the Clark County District Court Family Division.  Given the recent media attention to the merits of appointing versus electing judges, I thought it would be interesting to compare how the appointed judges fared in evaluations compared to the elected judges. 

 

The Las Vegas Review Journal recently released its retention scores of the judges in Clark County for 2010.  The score is a percentage that signifies the percentage of poll respondents who would recommend retaining the judge.  Of the six judges appointed by Governor Gibbons that I was familiar with from when I served in the Governor's Office, the average retention score of those judges was 81.1%.  The overall average retention score of a judge in Clark County (including the appointed judges) was 71.4%.

 

The findings comported with my impression of the appointment process.  The candidates for appointment are forwarded to the Governor from the Judicial Selection Commission, a bi-partisan Commission composed of both lawyers and laypersons.  The Commission conducts extensive background research and interviews the candidates for the position.  The top three candidates, and the background file on each, are forwarded to the Governor.  By law, the Governor must select one of the three candidates and cannot reject all three names and ask for new candidates. 

 

I was struck by the fact that every candidate that came from the Commission was an exceptionally strong candidate for the bench.  The process before the Commission tended to weed out the candidates who did not have the requisite background, experience, demeanor or desire to serve the state as a judge.  The Review-Journal poll results bore out the impression I had that the appointment process on average tends to result in the placement of highly qualified judges. 

 

Super-Sized PACs

An earlier blog post discussed the impact of FEC v. Citizens United on political expenditures in Nevada.  The Las Vegas Review Journal also ran an interesting piece on the same subject.  In the latest developments, the FEC issued advisory opinions that effectively allow corporations and unions to make unlimited contributions to independent expenditure committees (although usual PAC disclosure rules remain in place).  Although those committees are not affiliated with or allowed to coordinate with campaigns, the committees are free to make independent expenditures for or against candidates.  These so-called "super" PACs will undoubtedly be a force in current and future high-stakes elections.

The advisory opinions were issued to the conservative Club for Growth and the liberal Commonsense Ten.  Clearly, groups from both sides of the political pendulum are taking advantage of the opportunity to make independent expenditures. 

State Budget Relief?

With a projected shortfall for the upcoming biennium of somewhere around $3 billion, Nevada's budget is in serious trouble.  However, the latest concept for federal bailout money is aimed at providing fiscal relief to beleaguered states, by way of payments Medicaid payments that are otherwise a serious drain on a state budget. 

Under the Recovery Act, Nevada received around $450 million to help with Medicaid payments.  The current legislation proposes $16.1 billion nationwide.  Although Nevada's ultimate share is unknown (and is of course dependent on the bill passing Congress in the first place), most will view any help as better than no  help at all. 

Perhaps the biggest beneficiaries of the proposed legislation will be the gubernatorial candidates, who may be able to postpone decisions on some tough budget cuts while the legislation winds its way through the capitol.

None of the Above

With many voters holding unfavorable opinions of both Senator Harry Reid and his challenger, Sharron Angle, more voters than ever may be checking the box for "none of these candidates" in November.  Interestingly, Nevada is the only state to give voters the option to vote for none of the above (although, voters everywhere can always refuse to cast a ballot at all in a particular race, a practice resulting in what is called an "undervote"). 

Nevada has allowed voters to select "none of these candidates" in all statewide races since 1975.  There is no legal consequence if "none of these candidates" gets the most votes.  Instead, only votes for named candidates are counted for purposes of determining a victor.  NRS 293.269.  Still, "none of these candidates" gives voters a chance to officially record a protest vote, which can certainly put candidates on notice as to their popularity.

Many are wondering just how many voters will select "none of these candidates" in the 2010 Senate general election.  Historically and also ironically, the highest percentage ever in this category in a US Senate general election contest came in 1986, when 3.62% of voters lodged their dissatisfaction with Harry Reid and Jim Santini, the primary contenders for the office.  Harry Reid went on to win the election, his first to the United States Senate.  (Statistics Courtesy of the Nevada Secretary of State).

Recent polls show that up to 5% of voters prefer "none of these candidates" to either Harry Reid or Sharron Angle.  If that percentage holds, it will represent a marked and significant increase in the percentage of voters selecting the non-candidate option.  [Updated: another poll shows that up to 7% prefer neither candidate].

Of course, even refusing to vote for a named candidate has direct repercussions on the race, as it represents a vote that otherwise would have been cast for a named candidate.  Conventional wisdom holds that Republican moderates, who cannot bring themselves to vote for Harry Reid but who fear the uncertainties of Sharron Angle, will make up the bulk of voters choosing "none of these candidates."  If so, then Harry Reid has more to gain than to lose from a high percentage of disenchanted voters.

UPDATE:  The Las Vegas Sun followed up on this blog post with an interesting article.  You can read it here.

High Noon for the IFC

Throughout the past few years, tensions between the executive and legislative branches have been on the increase.  The constitutionality of the Interim Finance Committee (IFC) has been questioned by the Governor.  The IFC has been fiercely defended by the Legislature.  Those rooting for a legal showdown earlier in the year were disappointed as the constitutional conflict took a back seat to a special session and the primary election.

But now, the conflict is boiling up again and the dynamics between the executive and legislative branches have changed dramatically from just a few months ago.  A Governor with nothing to lose is squaring off with a Legislature disinclined to pay much heed to the final six months of the Governor's term.  In the crossfire are the Department of Business and Industry and the Department of Public Safety, who have been directed to disregard IFC requests for information.

The Legislature is now threatening the issuance of subpoenas, and hinting that fines and even imprisonment could be in store for those who fail to comply.  If the executive branch stands its ground, the legislature will either need to follow through or blink and back down.  And if the matter does proceed to a legal standoff, there will be a host of legal issues rekindling another long-standing conflict in state government between the Governor and the Attorney General.

The Attorney General has already declined to undertake litigation against federal health care reform as requested by the Governor.  As a result, the Governor retained outside volunteer counsel to represent the state.  It seems a safe bet that the Attorney General would similarly decline any gubernatorial directive to challenge the constitutionality of the IFC.  There is always the possibility that the Governor could seek outside counsel again to bring suit.  But there might be another way.  If state agencies are sued for failure to comply with a subpoena, and those state agencies are typically represented by the Attorney General, what happens then?   The Attorney General is required by NRS 41.0339 to defend state employees sued in a civil action from actions arising out of the course and scope of their official duties, and the contempt of court statute is a civil statute.  Could the Attorney General be required by law to challenge the legality of the subpoenas in the process of defending the state agencies?  Could the Attorney General defend against the subpoenas without implicating the fundamental authority of the IFC?  Might the Attorney General refuse to defend the state employees at all?

One way or another, we should know soon whether the conflict is heading to the courts or whether the situation will be defused in some fashion.  One thing is for sure, the Governor has not made things easy on the Office of the Attorney General.

PAC Registration and Magic Words

Nevada is in the midst of one of the first high-profile election law cases since the United States Supreme Court decided Citizens United v. FEC.  A Virginia corporation called Alliance for America's Future aired a pro-Brian Sandoval ad in Nevada.  (There is nothing to suggest the group is affiliated with the Sandoval campaign).  The Nevada Secretary of State filed suit and obtained a temporary restraining order.

In Citizens United, an outright ban on corporate expenditures on political advocacy was overturned.  However, the Court left reporting and disclosure requirements in place.  In the Alliance matter, the Nevada Secretary of State alleges that the Alliance violated the law by failing to register as a PAC before airing its advertisement.  It's a bit different from the underlying issue in Citizens United because there is no outright ban on airing political advertisements, but instead there is a rule that groups such as Alliance who engage in such activity must register as a PAC and disclose certain information, including contributors to the PAC.

Regardless, the main defense raised by Alliance doesn't turn on whether disclosure and registration itself is unconstitutional.  Instead, the Alliance argues that registration and disclosure are only required by Nevada law if the Alliance engaged in "express advocacy."  Although it seems obvious that any Nevadan paying even remote attention to politics would realize that the ad is intended to support Sandoval's gubernatorial candidacy, the Alliance cites to numerous published cases holding that express advocacy requires certain "magic words" like "elect," "vote for," support," etc.  And because the ad carefully avoided the use of such "magic words," the Alliance argues that it cannot be required to register as a PAC.

So what does it mean in terms of ramifications?  After Citizens United, non-Nevada groups already have the ability to spend money to influence elections here.  If the Alliance or Secretary push the present dispute to the Nevada Supreme Court and the Alliance prevails, those groups will also be able to avoid registration and disclosure requirements by carefully phrasing the language in their advertisements.  To some, such a result is cause for dismay as relatively-anonymous corporate dollars would be used to influence elections.  To others, it would be cause for rejoice as individuals and corporations would face less obstacles to expending their money to engage in political speech.  And to others, it won't really matter one way or another because those who want to spend money on elections will generally find a way.

The Impact of Apathy

An interesting article appeared today in the Reno Gazette Journal regarding voter turnout. According to the article, in 2008 there was a 59.9% voter turnout in the general election, the 10th worst state turnout in the country.  The 2008 primary turnout was even lower, with only 17.97% of registered voters casting a ballot.  I don't know where that stands in terms of state rankings, but it sounds dismal.

In 2010, the results of several primary races will almost certainly decide the results of the general election.  In the Governor's race for example, polling shows Rory Reid defeating Jim Gibbons in the general election, but losing to Brian Sandoval.  As a result, both Gibbons and Sandoval continue to tack to the right in an attempt to cater to primary voters.  The same phenomenon is occurring in several other races (and of course has always been the case in primary elections).  Taking extreme positions in order to survive a primary election can have consequences in the general election, when more moderates and independents head to the voting booths.

In terms of voter choice in the general, what this means is that the choices available to general election voters may not be much of a choice at all.  Although over half of voters may cast a vote in the general, their options have already been limited by votes cast by less than 1 out of every 5 voters.