Attorney General Gary King and lawyers for a nonprofit at the center of an election-year controversy agree on one thing: Making New Mexico Youth Organized (NMYO) comply with the state’s campaign reporting laws would have far-reaching implications in
They disagree, however, on whether that’s a good thing. King says he wants all groups who engage in political activity to play by the same rules, meaning all nonprofits that engage in politics should have to regularly report contributions and expenditures publicly, just like candidates, campaigns and political action committees. Attorneys for the Center for Civic Policy (CCP), the parent organization of NMYO, say that would hurt the ability of
“This will certainly have broader implications, and frankly this is one of the reasons I’m interested in it,” King said in an interview. “I don’t want anyone to think they can create an entity that is exempt from our campaign finance reporting laws. I think all groups should be treated equally.”
Attorneys Sara Berger and John Boyd of Albuquerque, who represent NMYO and CCP, wrote in a June 6 letter to Secretary of State Mary Herrera that “requiring groups like NMYO to register as a political committee when they conduct issue advocacy campaigns” would “have a severe chilling effect on these groups’ free speech rights.”
The key issues are the definition of “political purpose” in state law and the question of whether federal law applies to this situation.
Ultimately, Herrera will decide whether to take the AG’s advice and force NMYO to register as a political committee. Staffers from the offices of the AG and secretary of state are meeting this afternoon to discuss the issue. Boyd and Berger have threatened to sue if Herrera changes NMYO’s status.
King said he wouldn’t be surprised if, whether it’s in this instance or another, the courts decide the overriding issue: whether nonprofits can engage in activities he says cross the line between issue advocacy and political campaigning.
Boyd said that he hopes a lawsuit isn’t necessary.
“What I’m hoping is that cooler heads will prevail in the secretary of state’s office and that people will take a serious, cautious and careful look at this before they start acting, because all it’s going to do is buy litigation, which nobody needs,” he said.
What is a ‘political purpose?’
Three lawmakers who were defeated in the primary have already filed a lawsuit alleging a vast conspiracy to illegally and secretly funnel money aimed at defeating them through NMYO and other nonprofits. At issue are mailers like this one NMYO sent out shortly after the legislative session — two to three months before the June primary — targeting several lawmakers, including three who lost.
Though NMYO says the mailers were issue-based and aimed to influence the upcoming special session, King contends that the mailers cross the line between issue advocacy and political campaigning as defined by the state’s Campaign Reporting Act. Under that act, King says, the group meets the definition of a political committee. King has not shared details of his office’s legal argument, but said the key issue is the definition of the phrase “political purpose” in the act.
The act defines a political committee as two or more people — other than a candidate’s family members or a husband and wife who make contributions out of a joint account — who “are selected, appointed, chosen, associated, organized or operated primarily for a political purpose…” The act defines “political purpose” as “influencing or attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters.”
King said the mailers were clearly aimed at influencing the June primary. In the interview, he provided no details to back that up beyond what he has said previously: “… if it walks like a duck and quacks like a duck, then it’s probably a duck.”
Does the First Amendment apply?
Berger and Boyd wrote in their letter that there’s more that must be considered than the state’s Campaign Reporting Act. Their argument is based on three U.S. Supreme Court decisions, including the landmark 1976 Buckley v. Valeo. In the letter they wrote that the Supreme Court has “made it abundantly clear” that the First Amendment protection of speech allows governments to regulate “advocacy communication” only when a group “expressly and incontrovertibly urges voters to support or oppose a candidate for public office.”
In the interview, Boyd said NMYO’s mailers didn’t do that. They didn’t mention a candidate or upcoming election.
The First Amendment has nothing to do with the situation, King said. These were state legislative races that are subject to state law, not federal law. But Boyd said King’s argument flies in the face of basic constitutional law. The Supreme Court, he and Berger wrote in their letter, has ruled that forcing nonprofits to comply with registration, reporting and disclosure requirements can hinder their ability to exercise their right to free speech because such requirements can be burdensome for small organizations.
“He’s way out in left field on this,” Boyd said of King. “With all due respect to the attorney general,
King’s office originally expressed concern about the activities of NMYO in a May 22 letter to Herrera. When CCP disputed the AG’s position in its June 6 letter, the AG decided to take a close look at CCP’s arguments before issuing its final say. The AG sent a new letter to Herrera on Tuesday, but says it’s not a public record unless the AG’s client, the secretary of state, chooses to release it.
Herrera’s office is not currently releasing the letter, spokesman James Flores said.
‘A misunderstanding of the facts’
While the AG’s May 22 letter talked about his office’s belief that NMYO’s activities require it to register under the Campaign Reporting Act, it didn’t cite the group’s mailers. Instead, it cited as the basis of its argument information from the Web site of another group — The League of Young Voters — and erroneously said that was NMYO’s Web site.
The state chapter of The League was shut down in December, and NMYO was formed by some of its former members early this year. In their letter, Boyd and Berger said that proved that the AG’s letter was based on “a misunderstanding of the facts.” Berger sent her own May 22 letter to King attempting to clarify the issue.
King said the Web address probably came from the complainant who initiated the AG’s May 22 letter, state Sen. Shannon Robinson, one of the three defeated lawmakers who is suing the groups. King said the error and the fact that his office’s May 22 letter does not reference the mailers do not indicate that the letter “wasn’t well-researched.” Instead, he said that probably indicates “that we had more facts at our disposal than we put in the letter.”
Officials from CCP say such issues could have been cleared up if the AG had met with them. King said he’s not aware of any communication between the groups and the AG’s office, but said if CCP officials “want to sit down and talk to us, we’re certainly open to that.”
The groups responded by providing a copy of a July 31 letter their attorneys sent to King requesting “that we be given an opportunity to discuss this with you before a final determination is issued.” The group sent an additional letter to Herrera on Thursday requesting a meeting before her office issues a formal decision on NMYO’s status.
“We have yet to hear a response from the attorney general’s office, despite a written request for a meeting,” Eli Il Yong Lee, CCP executive director, wrote in an e-mail. “The attorney general has made his decision clear in the media, even though he has yet to meet with us. This attempt to muzzle
By way of disclosure, I also write for the New Mexico Independent, which is owned by the Center for Independent Media in