Nonprofits get appellate court’s backing in fight with AG, SOS

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Secretary of State Mary Herrera (left, courtesy photo) and Attorney General Gary King (right, photo by Heath Haussamen)

A federal appeals court has upheld a lower court’s rejection of an attempt by the secretary of state and attorney general to force two nonprofits to register as political committees.

Because the nonprofits’ central purpose isn’t advocacy for candidates, and their election-related expenses don’t make up a preponderance of their budgets, they can’t be forced to register as political committees, the ruling, which the 10th Circuit Court of Appeals issued today, states.

A New Mexico law that Attorney General Gary King and Secretary of State Mary Herrera have said requires the groups to register as political committees because they spend at least $500 a year for political purposes isn’t constitutional, the court ruled. It called the law’s classification of a “political committee” based on a $500-a-year benchmark “politically infirm.”

King’s spokesman, Phil Sisneros, had no immediate comment, saying the AG had not yet seen the ruling. Herrera did not immediately respond to an e-mail seeking comment.

The nonprofits, on the other hand, were quick to comment.

“The decision by the 10th Circuit Court of Appeals affirms the right of nonprofit organizations to hold public officials accountable. It also affirms the right of nonprofit organizations to educate the public and engage them in their democracy,” said Center for Civic Policy (CCP) CEO Matt Brix. “We hope with this decision that this matter can finally be put to rest.”

SouthWest Organizing Project (SWOP) Executive Director Robby Rodriquez added that the decision “validated what we’ve said all along, which is that Attorney General Gary King was inexplicably trying to abridge our right to free speech.”

“And his pursuit of the case despite well-established law has had a chilling effect on free speech in this state,” Rodriquez said.

Groups ‘do not qualify as political committees’

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The longstanding fight between the state officials and New Mexico Youth Organized (NMYO) — which is a project of CCP — and SWOP took a turn in favor of the nonprofits in August, when U.S. District Judge Judith C. Herrera issued a 30-page decision stating that mailers like this one sent out two to three months before the 2008 primary don’t meet the narrow definition in federal law of political activity and thus can’t be regulated as such.

Under federal law, nonprofits don’t have to disclose their donors or provide detailed information about expenses to the public, but registering as state PACs would have required these nonprofits to do just that.

The 10th Circuit stated in its ruling that there are two tests to determine an organization’s primary purpose: “examination of the organization’s central organizational purpose” and “comparison of the organization’s electioneering spending with overall spending to determine whether the preponderance of expenditures is for express advocacy or contributions to candidates.”

“Under either approach of the major purpose test, the organizations here do not qualify as political committees,” the court’s ruling states.

The ruling states that the groups have never advocated for the election or defeat of any candidate for office and that both are focused on education and nonpartisan get-out-the-vote activities.

In addition, the court ruled, “there is no indication that either group spends a preponderance of its expenditures on express advocacy or contributions to candidates.” And, the court said, “there is no evidence in the record to contradict the declarations from the parties that they do not engage in advocacy for candidates or make contributions to them.”

Will King appeal to U.S. Supreme Court?

It’s the point about advocating for candidates that the attorney general and secretary of state dispute. King has said the groups’ mailers crossed the line between issue advocacy and political campaigning as defined by the state’s Campaign Reporting Act. He alleges that they were designed to help progressive legislative candidates win elections.

In addition to contending that the mailers were about the special session, not an election, the nonprofits have said all along that federal law trumps the state Campaign Reporting Act. The courts have agreed.

When the 10th Circuit ruling points out that there is “no evidence in the record” to prove King’s allegation that the mailers crossed a line, it’s essentially saying that King has been unable to back up his claim. King has also done little to back up his allegation publicly except to say that if it “walks like a duck and quacks like a duck, then it’s probably a duck.”

King also said – long before a lawsuit was filed – that he expected the courts to decide the issue. He hasn’t said whether he will appeal the 10th Circuit ruling to the U.S. Supreme Court.

Update, 3:25 p.m.

Deputy Secretary of State Don Francisco Trujillo II said his office will review the ruling with the AG.

Update, 4:35 p.m.

Sisneros, the AG spokesman, said this:

“We are currently carefully reviewing the decision and considering our options on how to respond. Attorney General King continues to believe that if organizations want to campaign in New Mexico then they should have to disclose where their funding comes from.”

One thought on “Nonprofits get appellate court’s backing in fight with AG, SOS

  1. The 10th Circuit got it right. Let’s hope that AG King doesn’t continue to waste taxpayer money on this issue with another pointless appeal.