‘Unenforceable’ campaign law a worry headed into 2012

Flaws in state law mean New Mexico isn’t prepared for the massive amounts of money that will likely be spent on the presidential, Senate and House races next year

Recent court decisions have rendered New Mexico’s Campaign Reporting Act “unenforceable,” one good-government activist says. Without strong disclosure laws in place, some worry the swing state could be flooded with undisclosed spending on ads next year.

Especially unregulated in New Mexico are so-called independent expenditures – communications such as advertisements that expressly advocate for the election or defeat of a candidate that are not made in cooperation with any candidate or political party.

Such expenditures include ads paid for by corporations or political committees. That type of spending is becoming the norm in American politics, and New Mexico law isn’t equipped to handle it.

That reality makes this “crisis time” in New Mexico, according to Steven Robert Allen, executive director of Common Cause New Mexico. The state has open Senate and House seats in 2012, and it’s a swing state in what will likely be the most expensive presidential race in history.

“We have an unenforceable Campaign Reporting Act in the State of New Mexico now. We’re going into a gigantic presidential election cycle where we can expect tons of money flooding into the state from outside groups, and we don’t have a way for handling that,” Allen said.

State Sen. Peter Wirth, D-Santa Fe, said New Mexico’s Election Code “desperately needs a First Amendment tune-up.”

“Recent federal court decisions have reiterated how narrowly political disclosure requirements have to be tailored to pass constitutional muster,” he said. “New Mexico’s election statute failed the test on a number of fronts.”

The flaws in New Mexico law

The concern of Allen, Wirth and others is caused by at least two issues:

• The 10th Circuit Court of Appeals has deemed New Mexico’s definition of a political committee “constitutionally infirm.” That happened in 2010 when the 10th Circuit upheld a lower court’s rejection of an attempt by the secretary of state and attorney general to force two nonprofits to register as political committees.
• The U.S. Supreme Court’s ruling in the Citizens United case means states can no longer limit the size of donations being spent on independent expenditures, so New Mexico’s law limiting such donations isn’t constitutional. Whether state limits on contributions to other groups and candidates are constitutional isn’t as clear. The state GOP has filed a lawsuit challenging most provisions in the New Mexico’s new contribution-limits law.

There’s already a sign of what might be coming next year: A Rhode Island political action committee funded by a corporation has announced plans to spend money to affect the Nov. 8 Las Cruces mayoral race. The PAC’s founder says because of Citizens United the group won’t disclose fundraising or spending. He says he expects lawsuits in New Mexico and Rhode Island to challenge his actions.

Such tests of campaign finance law in the post-Citizens United era are becoming the norm.

Guv supports campaign finance disclosure

But in the Citizens United case the Supreme Court overwhelmingly upheld the right of governments to enact tough disclosure laws.

“In the new political landscape of unlimited corporate and union contributions to independent expenditure committees, the name of the game for voters will be donor disclosure and knowing where the money is coming from,” Wirth said.

In the wake of the GOP lawsuit challenging contribution limits, Allen encouraged Gov. Susana Martinez and the Republican Party to help enact new disclosure laws.

“At the very least, New Mexicans need to know who is funding which campaign. That seems like a basic element in any functioning Democracy,” Allen said. “Common Cause would be very eager to work with the governor and the Republican Party on that.”

Martinez disagrees with Common Cause’s pushes for some ethics reforms including contribution limits, but she has been a supporter of disclosure. During her 2010 campaign she released finance reports more often than required. She also released a list of donors who funded her inauguration celebration. Shortly after she took office, she required cabinet secretaries to disclose personal financial information.

Martinez spokesman Scott Darnell said the governor “believes strongly that the public has a right to know who is funding political campaigns and has always gone above and beyond in disclosing contributors.”

“Governor Martinez is willing to work with anyone sincerely committed to improving our campaign finance laws to ensure that the voices of candidates and political parties are not drowned out by special interest groups operating in secret,” Darnell said.

Wirth and Allen have proposed a legislative fix

If a bipartisan effort to fix the law emerges, Wirth will likely be at its center. In this year’s regular legislative session, he sponsored a bill that would have amended the Campaign Reporting Act to require disclosure of independent expenditures, rewrite the definition of “political committee,” and tweak the law in other ways.

The bill, which Common Cause helped draft, passed the Senate but died in the House. Passing such a bill remains necessary, Wirth said.

“Without statutory clarification, independent expenditure committees and nonprofits will continue to push the limits,” he said. “When that happens it’s the voters who are left in the dark.”