New Mexico Youth Organized (NMYO) has been a bad, bad nonprofit. At least, that’s the message from the attorney general and secretary of state.
Attorney General Gary King is telling the group: You’ve walked like a duck. You’ve quacked like a duck. So you are a duck. And Secretary of State Mary Herrera is saying: Because of that, you have to formally register as a duck (political action committee).
King has a message for other nonprofits as well: If you quack like a duck, we’re going to make you register, too.
Here’s the problem: King and Herrera are telling nonprofits to avoid the line between issue advocacy and political campaigning or register as a political committee, but they aren’t telling nonprofits where they believe that line is.
It’s like spanking a child for misbehaving without explaining to the child what he did that warranted a spanking and how he must change his behavior in the future. It doesn’t teach him anything. All it does is encourage him to keep his head down and his mouth shut.
I’m not saying that Herrera and King intend to hinder nonprofits’ right to free speech. But attempting to enforce the rules in a way they’ve never done before without explaining how they interpret the rules could frighten nonprofits into silence.
I have no idea who’s right in the fight over whether NMYO has crossed the line. I know the legal arguments of NMYO, because the group has released the letter it sent to the secretary of state making its case. But I don’t know a thing about the attorney general’s legal argument other than his statement that it centers around the definition of the phrase “political purpose” in the state’s Campaign Reporting Act.
Herrera sent this letter to NMYO on Aug. 18 informing the group that it is “operating as a political committee.” That followed a letter King sent to Herrera the week before advising the secretary of state that NMYO was in violation of the Campaign Reporting Act and must immediately comply.
But Herrera’s letter doesn’t say anything about how NMYO violated the act. It simply states that the group committed the violation. Neither office will release King’s letter, which includes the full legal argument that NMYO has crossed the line. King told me in a recent interview that he can’t release the letter because it’s subject to attorney/client privilege and only the client, Herrera, can choose to release it.
Herrera’s spokesman, James Flores, said in an interview that the letter won’t be released “any time in the near future.” Asked how nonprofits are supposed to know how to avoid the line between issue advocacy and political campaigning, he referred to the Campaign Reporting Act. He also said groups that register as PACs are provided an information packet that tells them how to comply with the statute.
How to interpret the act is the dispute in this instance, so that’s no help. And the information packets are no aid to groups that are trying to avoid having to register as PACs.
Herrera needs to rectify the situation
So here’s what nonprofits know: King says if they don’t want to be required to register as PACs — and regularly report contributions and expenditures — they have to avoid walking and quacking like ducks. He says the problem is the mailers NMYO sent out shortly after the legislative session and two to three months before the June primary targeting several lawmakers, including some who were up for re-election. But neither office will say what specifically was wrong with those mailers.
Also public is the May 22 letter from King’s office to Herrera that kicked off this controversy. But that letter doesn’t even refer to the mailers King says are the problem. Instead, it erroneously quotes a mission statement from a Web site that doesn’t belong to NMYO to justify the claim that NMYO has been involved in political campaigning.
Finally, nonprofits know that there is a threat. Before Sept. 2, Herrera’s letter states, NMYO must register as a political committee and explain its “apparent violation.” The letter also states that the group could be fined $50 per day for a maximum of $5,000.
In other words, groups trying to avoid the ire of the state agencies are being given no guidance on how to do that, so they’re left with a choice: Keep your head down and your mouth shut or risk having to register as a PAC and pay a stiff fine.
That isn’t fair, and it certainly isn’t in line with the intent of the First Amendment. Herrera needs to immediately rectify the situation by releasing the AG’s letter or another document that lays out its legal argument or provides guidance to nonprofits.
By way of disclosure, I also write for the New Mexico Independent, which is owned by the Center for Independent Media in