Another nonprofit has been dragged into the dispute with the attorney general and secretary of state over mailers sent out between this year’s legislative session and the June primary.
Several nonprofits are already the target of a lawsuit from three legislators who lost primary races in June, but SouthWest Organizing Project (SWOP) is now the second nonprofit to have to defend its actions on two fronts.
The group has until Sept. 15 to respond to the Secretary of State’s Office demand that it comply with the Campaign Reporting Act, according to a letter the office sent the group on Aug. 28.
The letter is nearly identical to one sent to New Mexico Youth Organized (NMYO) on Aug. 18. It states that the group is operating as a political committee though it has not registered, as committees are required to do under the act, and states that the group could be fined $50 per day, for a maximum of $5,000, for the time it has not been in compliance.
But the question of whether the nonprofits’ activities can be legally defined as political in nature is apparently headed to court. The attorney general and attorneys for NMYO have agreed to a stay on any action by the secretary of state in their dispute so the case can instead be resolved through legal action.
At stake is what nonprofits can and can’t do when spreading information about elected officials. Attorney General Gary King says the mailers crossed the line between issue advocacy and political campaigning. He advised the secretary of state to force NMYO to regularly report contributions and expenditures publicly, just like candidates, campaigns and political action committees.
The nonprofits strongly disagree with King’s opinion. Attorneys for NMYO and its parent nonprofit, Center for Civic Policy (CCP), laid out their legal argument in a letter to the secretary of state, while SWOP published a posting on its blog disputing King’s opinion.
A dispute about an agreement between AG, CCP
There’s been a controversy about what the AG and NMYO agreed to that began when the Albuquerque Journal reported on Thursday that NMYO had missed its deadline to respond to the secretary of state. CCP responded to the article with a news release stating that attorneys on both sides had agreed “to a stay of agency enforcement for the September 2 deadline… pending future litigation,” so the Journal article was “inaccurate.”
Phil Sisneros, spokesman for the AG, responded initially by saying Thursday afternoon that there was no agreement in place but his office “would not be opposed to a stay as long as they abide by the points we made in our letter to the SOS.” Later Thursday, he said an agreement had just been reached.
This morning, David Urias, attorney for CCP, said that’s not accurate. He said King and a CCP attorney personally agreed on Aug. 25 that CCP would not file a temporary restraining order to try to stop enforcement and, in exchange, the AG would not enforce the deadline. The agreement, he said, was “in the context of the fact that CCP wasn’t planning to do any advertisements at all going into the general election, other than the usual get-out-the-vote or that kind of stuff that they engage in.”
He said the two sides agreed at the time to allow legal action to proceed so a court could resolve the issue.
In response to Urias’ statement, Sisneros said today that the sides have “been talking about agreeing to a stay of the deadline for more than a week, but until yesterday afternoon, had not officially announced that we had agreed.”
“We are still (today) working on details of the agreement, but there is not an official, signed document to that effect,” he said.
Regardless, Sisneros said, both sides have agreed that there won’t be enforcement action at this time as the two sides negotiate how to proceed.
The legislators’ lawsuit
Meanwhile, the nonprofits are fighting on a second front. Attorneys for CCP, SWOP and other groups filed a motion this week to have the legislators’ lawsuit dismissed. The lawmakers, Sens. Shannon Robinson and James Taylor and Rep. Dan Silva, are alleging a vast conspiracy to illegally hide the spending of at least $180,000 on a secret campaign against them. They want their defeats voided.
The motion to dismiss, which you can read here, claims that the lawsuit is baseless and that nonprofits and other third parties can’t legally be dragged into such an election-related challenge under state law.
“We’ve maintained all along that the claims made by Sens. Robinson and Taylor and Rep. Silva are patently false,” CCP’s policy director, Matt Brix, said in a news release. “Their lawsuit is an attempt to muzzle nonprofits from publicizing the voting records of elected officials. In these times of overwhelming special-interest money and influence, New Mexicans need this information more than ever.”
By way of disclosure, I also write for the New Mexico Independent, which is owned by the Center for Independent Media in