The situation is noteworthy because of the effect the legal battle between the nonprofits and the state officials over such mailers has had on New Mexico campaign law heading into this year’s election.
With their right to lobby the Legislature backed by a federal appeals court, two nonprofits that fought with state officials over mailers they sent in 2008 are out with a new mailer pressuring the governor and lawmakers on various tax-related bills.
The mailer from the Center for Civic Policy and SouthWest Organizing Project (SWOP), which hits mailboxes this weekend, tells Gov. Susana Martinez that the “same old” policies “won’t cut it” and urges her to “choose the road that will make things better for New Mexico.”
The mailer (read the front here and back here) states that government shouldn’t “rig the system to benefit the rich and big corporations.” It urges the enacting of a law that would require all out-of-state corporations doing business in New Mexico to pay state taxes and another that would require reviews of tax breaks given by the state. It also states opposition to “giving even more corporate income tax breaks.”
This isn’t the first time the nonprofits have sent out mailers since their fight with Attorney General Gary King and then-Secretary of State Mary Herrera ended, but the situation is noteworthy because of the effect the legal battle between the nonprofits and the state officials over such mailers has had on New Mexico campaign law heading into this year’s election.
In 2010, the 10th Circuit Court of Appeals deemed New Mexico’s definition of a political committee “constitutionally infirm,” upholding a lower court’s rejection of the attempt by the secretary of state and attorney general to force the nonprofits to register as political committees because of their mailers.
That’s one of the reasons some say New Mexico’s Campaign Reporting Act is essentially unenforceable headed into the 2012 election. Sen. Peter Wirth has proposed legislation that would help address the issue.
The history
As for the fight between King and Herrera and the progressive nonprofits, the 10th Circuit ruled that, because the nonprofits’ central purpose isn’t advocacy for candidates, and their election-related expenses don’t make up a preponderance of their budgets, they can’t be forced to register as political committees, regardless of what state law requires. That’s why the court tossed out the law that King and Herrera tried to use to force the nonprofits to register as political committees.
The courts ruled 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. King alleged that the groups’ mailers crossed the line between issue advocacy and political campaigning as defined by the state law and alleged that they were designed to help progressive legislative candidates win elections. The nonprofits contended that the mailers were designed to affect matters during a special session of the Legislature.
The issue is important because, under federal law, nonprofits don’t have to disclose their donors or provide detailed information about expenses to the public, but registering as state PACs would have required these nonprofits to do just that.