The attorney general’s office is already involved in a lawsuit with two progressive nonprofits it wants to force to register as political action committees. Now the AG is issuing a strong warning to a conservative nonprofit that has sprung up in response to its progressive counterparts.
“There is talk of at least one emerging nonprofit group that apparently believes it will have more ‘wiggle room’ to get involved in political activity,” Attorney General Gary King said today in a news release.
“The truth is they can wiggle as much as they want as long as they comply with campaign finance laws,” he said. “We will continue to advise the Secretary of State’s Office that nonprofits engaging in targeted election-related activities are required to disclose their donors’ contributions and expenditures just like every other political action committee.”
The “wiggle room” quote comes from a weekend article in the Albuquerque Journal about the Southwest Citizens Coalition, a nonprofit whose stated aim is to stop progressives from “building a permanent ultra-liberal majority in New Mexico.”
Coalition President Allen McCulloch was quoted by the Journal as saying his group is set up as a 501(c)(4) nonprofit under federal tax law. He said that gives it more “wiggle room” to participate in political activity than the progressive nonprofits, which are 501(c)(3) nonprofits.
Not in New Mexico, at least without registering as a PAC, King said.
“My position in no way threatens the good work that most nonprofits in New Mexico are known for,” King said. “I just want to make it clear that if an organization acts like a nonprofit but wiggles like a duck and quacks like a duck, it’s probably a duck.”
King has used a similar “duck” quote in the past to explain his position in the dispute with the progressive nonprofits.
Electioneering or education?
The attorney general and secretary of state have accused the two progressive nonprofits — New Mexico Youth Organized, which is a project of the Center for Civic Policy, and SouthWest Organizing Project — of engaging in political activity in last year’s legislative races with mailers like this one.
The AG alleges that the mailers were aimed at helping progressive legislative candidates win elections. Because of that, the AG says those nonprofits have to register as political action committees.
The nonprofits say the mailers were designed to educate the public about lawmakers’ votes, not influence the election. They point out that the mailers were sent shortly after last year’s legislative session and two to three months before the June primary.
The nonprofits have sued the AG and secretary of state to try to stop the attempt to force them to register as PACs. The lawsuit is pending.
Does federal or state law take precedence?
Under federal law, a 501(c)(4) can engage in expressly political campaign activity as long as that’s not its primary activity. A 501(c)(3) cannot.
But King has said his fight with the progressive nonprofits is about state law and has nothing to do with federal law. King contends that the progressive nonprofits’ 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, who has acknowledged that the dispute could have far-reaching implications for nonprofits in New Mexico, has not shared details of his legal argument beyond using the duck quote and saying the key issue is the definition of the phrase “political purpose” in the act.
Attorneys for the nonprofits say state law doesn’t trump the First Amendment and have laid out their legal arguments publicly.
By way of disclosure, I also write for the New Mexico Independent, which is owned by the Center for Independent Media in Washington. When the group was starting up its New Mexico news site earlier this year, the Center for Civic Policy helped it locate funding sources. The Center for Civic Policy has never tried to use that fact to influence anything I have written.