Attorney General Gary King (Photo by Heath Haussamen)
Attorney General Gary King is still considering whether to take his fight to force two nonprofits to register as political committees to the U.S. Supreme Court. He’s also exploring ideas for amending state law so that its requirement that groups disclose funding sources passes the constitutional test.
The 10th Circuit Court of Appeals recently upheld a lower court ruling rejecting attempts by King and Secretary of State Mary Herrera to force two nonprofits to register as political committees. Because the nonprofits’ central purpose isn’t campaign intervention, and their election-related expenses don’t make up a preponderance of their budgets, they can’t be forced to register as political committees, the 10th Circuit ruled.
King is looking for ways to use what judges said in that case – and what the U.S. Supreme Court said in the recent Citizens United v. Federal Election Commission case – to rewrite state law and require disclosure of funding sources in a way that the courts will uphold.
Still, King hasn’t ruled out an appeal of the 10th Circuit’s decision, he said in a recent interview.
“We are quite honestly digesting that case and trying to decide,” he said last week. “Unless we can convince the U.S. Supreme Court to change the law as it’s been stated out of the 10th Circuit, my guess is we don’t have the authority to require disclosure from those kinds of organizations.”
The central question is whether nonprofits, which don’t have to disclose funding sources to the public under federal law, can be required by the state to disclose how they are funded – or at least how they’re paying for activity the state decides is political in nature.
The courts have, thus far, rejected the requirement in the state’s Campaign Reporting Act that groups must register as political committees and disclose funding sources if they spend at least $500 a year for political purposes. The 10th Circuit looked at the organizations’ central purposes and whether political activity makes up a preponderance of their budgets, and determined that they didn’t qualify as political committees.
King said the test the 10th Circuit applied, combined with part of the Citizens United ruling upholding disclosure rules, could leave the door open for regulation of political activity from nonprofits and other groups if the law is worded correctly.
To get there, state law must more clearly define political activity.
“We need to make it much more clear under New Mexico law,” King said. “What is campaigning?”
What is campaigning?
That’s where the disagreement has been all along. New Mexico Youth Organized, which is a project of the Center for Civic Policy (CCP), and SouthWest Organizing Project maintain that mailers like this one sent out two to three months before the 2008 primary don’t meet the narrow definition in federal law of political activity and thus can’t be regulated as such. In August, a U.S. District judge agreed. The 10th Circuit recently upheld that ruling.
King maintains that the groups’ mailers were designed to help progressive legislative candidates win elections. But he hasn’t backed up that assertion except to say that if it “walks like a duck and quacks like a duck, then it’s probably a duck.”
The nonprofits say the mailers were about a special session of the Legislature, not an election.
King said focusing on the groups might be the wrong way to go.
“I think what the courts are telling us is that focusing on the organization is the wrong way to go. You should focus on the activity,” King said. “Maybe in the long run what the 10th Circuit case will do is eliminate any fears that long-time nonprofits that were formed for charitable purposes (will) somehow get afoul of campaign laws in New Mexico.”
King said he’s not out to require disclosure from groups such as the League of Women Voters or Association of Commerce and Industry, groups that “really do provide information to either the public or to their members, and it’s not campaigning.”
He wants to force groups that were formed “for the purpose of an election or a series of elections” to disclose their funding sources to the public.
“I think that’s what the voters really need and want to see,” King said. “I think that’s what our laws are designed for… but I think what the court has pointed out is that our laws might not be sufficient to cover the modern types of campaigning.”
What about the Rio Grande Foundation?
To try to get a better sense of King’s take on what constitutes political activity, I asked about activity from the Rio Grande Foundation and New Mexico Watchdog, a project of the foundation.
Among the examples of the nonprofit’s activity I provided to King:
• New Mexico Watchdog has been focused like a laser on Democratic gubernatorial candidate Diane Denish and her spending – and in some cases misspending – of hundreds of thousands of dollars of federal stimulus money during her tenure as lieutenant governor.
• Jim Scarantino, who runs New Mexico Watchdog for the Rio Grande Foundation, gave a speech to the Santa Fe Tea Party in April at which he stated that, “under the leadership of Bill Richardson and Diane Denish, New Mexico is suffering to the worst period of corruption in its history.” He also said, near the end of his speech, that “because the blood of patriots had been shed for us, we do not need torches and pitchforks to secure and defend freedom. We only need to vote the bums out.”
Audio of the speech was posted on New Mexico Liberty, another Rio Grande Foundation site, and linked to from New Mexico Watchdog.
• Last year, Rio Grande Foundation was a co-sponsor, along with the political action committee New Mexico Turnaround, of a candidate training school. Among the agenda items at the conference were “Hardwiring precincts for electoral success,” “The keys to winning – message, motivate and mobilize,” and “Implementing Freedom – Understanding the blueprint for a successful candidacy.”
Though New Mexico Turnaround isn’t made up entirely of Republicans, one of its board members is Republican gubernatorial candidate Susana Martinez’s campaign manager. The group says it will rarely support incumbents. It also states this:
“One of the best ways to reduce political corruption is for there to be divided or alternating control in the state Legislature. This circumstance would reduce the level of arrogance in legislators and would enhance the capacity of one party to discover and report to the citizens the sins of the other party. For this reason NMTA supports the transfer of control of the New Mexico State House to Republican control. Its goal is to help that transfer occur over the next two or three election cycles. Its goal, also, is to get you to help it in this endeavor.”
Paul J. Gessing
Foundation’s activity concerns King
King said in his view such activity by the Rio Grande Foundation is similar to the activity by CCP and SWOP – meaning it crosses the line between issue advocacy and political campaigning. But he didn’t go into detail.
Scarantino and the foundation’s president, Paul Gessing, disagree. From Gessing:
“Simply put, the Rio Grande Foundation does not work on behalf of candidates and is not ‘political.’ While not taking a position on the efforts of SWOP or CCP, there is no question that their efforts are closer to the line than anything we do (we have never done mailers anything like what those groups have done). We continue to scrupulously adhere to both New Mexico and federal law regulating 501c3 organizations.”
Scarantino said he spoke to the Santa Fe Tea Party at a nonpartisan event on his own time. No other journalists had looked into how Denish spent money from a 2003 stimulus bill, he said, and it’s his job to look into how public officials spend money.
And while Scarantino has said that New Mexico is “suffering its worst episode of public corruption” during the Richardson administration, he pointed out that he has stated during his tea party speech and at other times that when the GOP controlled the state, “they were equally corrupt.” He referred to the Santa Fe Ring, which controlled the then-territory of New Mexico in the late 1800s and early 1900s at a time of extreme political corruption.
Gessing said the foundation speaks to a wide variety of groups including the tea party, and said such groups “are not ‘political’ insofar as they are an arm of any political party.” Neither, he said, is New Mexico Turnaround.
The bottom line for Gessing: “Even if King succeeds in his efforts to curtail the efforts of SWOP or CCP, we at the Rio Grande Foundation believe that we are well within the boundaries of our 501c3 status in our work on behalf of the taxpayers and citizens of New Mexico.”
‘Until we can get the law clarified…’
Decades of case law back up the similar assertion made by CCP and SWOP that they are expressing their right to free speech under the First Amendment and can’t be forced to disclose funding sources. King has been trying to change the way the courts in the United States view nonprofits based on his assertion that some have been taken over by political money.
He’s still faced with the decision about whether to take the fight to the U.S. Supreme Court. And there’s the task of updating state law. Until the court battle is resolved and the law is updated, there’s little point to trying to force other groups such as the Rio Grande Foundation to register as political committees and disclose their funding sources.
King said he believes there will be a number of organizations in New Mexico this election cycle “that are going to look to the public like campaign organizations but are going to claim that they’re not covered by our campaign reporting act.” For now, he said, there’s little he can do about it.
“Until we can get the law clarified… I think that we don’t have the tools that are going to be necessary to force them to comply with what I think are good government provisions in our campaign reporting act – those that require disclosure,” King said.