Attorney General Gary King (Photo by Heath Haussamen)
Attorney General Gary King’s office can’t say how much taxpayer money has been spent on litigation with two nonprofits even as King appeals a judge’s ruling against his attempt to force the nonprofits to register as political action committees.
That’s because attorneys who work in the AG’s office are on staff and don’t record billable hours, so there’s no accounting of how much time and, therefore, taxpayer money they’ve spent on the case.
The time lawyers spend working on the case “does not apply as our attorneys do not track their time and are not paid by case or billable hours,” Lyn Payne, the office’s records custodian, wrote in an e-mail. That came in response to a records request asking for an account of all costs the AG’s office has incurred in the course of the lawsuit.
But clearly taxpayer money goes to the salaries of the office’s employees who are working on the lawsuit.
Payne could identify two tangible costs – the $455 filing fee paid to the 10th Circuit Court of Appeals in Denver to appeal State District Judge Judith Herrera’s recent ruling against the AG’s office, and the $72,000 Herrera has ordered the state to pay the Center for Civic Policy (CCP) and SouthWest Organizing Project (SWOP) to reimburse the organizations for the attorney fees and other costs they have incurred in the course of trying to stop the AG and secretary of state from forcing them to register as PACs.
“Tens of thousands of dollars were wasted (on the litigation with the AG), while at the same time a deficit prompted talk of cutting education and health care for the most vulnerable New Mexicans. That’s a shame,” said Matt Brix, CCP’s chief operating officer. “To make matters worse, the final price tag for New Mexico taxpayers may never be known because Attorney General King’s office cannot account for how much staff time they poured into this frivolous pursuit.”
The history
The nonprofits have contended from the start of their battle with King and Secretary of State Mary Herrera that the attempt to force them to register as PACs was unconstitutional. In early August, Judge Herrera issued a 30-page decision stating that mailers like this one sent out by SWOP and New Mexico Youth Organized (NMYO) — which is a project of CCP – two to three months before last year’s June primary don’t meet the narrow definition in federal law of political activity and thus can’t be regulated as such.
King has said the mailers cross the line between issue advocacy and political campaigning as defined by the state’s Campaign Reporting Act, alleging that they were designed to help progressive legislative candidates win elections.
In addition to contending that the mailers were about an upcoming special session of the Legislature, not an election, the nonprofits have said all along that federal law trumps state law.
The nonprofits assert – and Judge Herrera agrees – that the attempt to force them to register as PACs violates their First Amendment right to free speech. PACs have to publicly disclose information about donations, while nonprofits do not.
King has said the case has nothing to do with the First Amendment, because his office is “not trying to control the content of political ads.” He says it’s about “voters having the right to know who is paying for political advertising.”
Appeal already filed
King’s office has already filed its appeal with the 10th Circuit Court in Denver, spokesman Phil Sisneros said. He doesn’t expect a decision from the court until sometime next year.
The AG’s office plans to pay the $72,000 that Judge Herrera ordered, Sisneros said, knowing that if the AG prevails in the lawsuit that money will be paid back.
“Our issue in this case is on the merits, and if we win, the attorneys’ fees will come back to the state,” he said.
In a recent news release that came after Judge Herrera ordered the state to pay the nonprofits’ litigation costs, the nonprofits complained that the AG is appealing the case “despite the decisive victory in district court and despite the clearly settled law in this area.”
“It is upsetting that state money is being spent on frivolous pursuits like this when a deficit is prompting discussion of cutting education and health care for children,” SWOP communications director George Lujan said in the news release.
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 last year, CCP helped it locate funding sources. In addition, one of my colleagues at NMI, Marjorie Childress, works for SWOP. Neither organization has tried to use those facts to influence anything I have written.