New Mexico lobbyists and their employers reported spending more than $690,000 during the first four months of the year, but whether that’s everything they spent is anyone’s guess.
That’s in part because a 2016 loophole changed the reporting requirements for organizations and people they hire who spend money to influence public officials.
But it’s also due to vague laws and statutes that result in a situation in which lobbyists are now free to report some expenses, or not. And how they report them depends on a lobbyist’s interpretation of the rules.
The 2016 law raised the reporting threshold to $100 or more from $75 or more, meaning lobbyists no longer had to disclose individual expenses between $76 to $99.
But it created a loophole by eliminating a mandate for lobbyists to report the total amount spent for individual expenses under $100.
Most lobbyists appear to be reporting their spending despite that loophole, an NMID analysis found. It’s impossible to know how many lobbyists are taking advantage of the new rules.
But a few appear to be. New Mexico In Depth identified 20 lobbyists who reported no expenses between Jan. 15 through May 1 this year but who reported more than $23,000 in expenses the first four months of 2015.
Lawmakers voted to close the loophole this year during the 60-day legislative session, but Gov. Susana Martinez vetoed the fix, saying it was too ambiguous.
Lobbyists and Secretary of State Maggie Toulouse Oliver, however, said the entire system is ambiguous. And chances are good that ambiguity will remain, at least for now.
State lawmakers have repeatedly killed efforts to require greater disclosure by lobbyists that also would clarify the rules, reducing the ambiguity. Bills to tighten lobbyist reporting laws, including requiring details on all expenses, died in committee during this year’s 60-day session.
Toulouse Oliver said lobbyist reporting is “one of the areas where this office needs to write this into rule and provide better guidance.”
“You have a lot of well-intentioned folks out there,” Toulouse Oliver said of all the lobbyists who appear to be reporting their spending. With new rules, “the goal is going to be to provide consistency” in how those lobbyists report spending.
The ambiguities
Reporting on burgers and fries provided to House members and staff on Feb. 22 illustrates the variety of ways lobbyists report their spending, as well as the ambiguities.
That evening, House Appropriations and Finance Committee Chairwoman Patricia Lundstrom thanked seven lobbyists for providing Lotaburgers and fries for dinner before a lengthy budget debate.
Two lobbyists later reported spending $120 for the dinner, although on different dates. One of the lobbyist’s employers reported spending $123.54 for the burgers.
Two other lobbyists told NMID they contributed less than $100 to the dinner and included it in their aggregate expenses.
Jason Weaks emailed NMID that he’d file an amended report with the $120 expense.
Weaks noted a common issue for lobbyists: It’s unclear whether the $100 report limit applies to individual expenditures or spending on an individual. The law and Secretary of State guidance refer to individual expenditures. But many lobbyists file aggregate expenses, saying they’re “under $100 per beneficiary.”
“I always try to comply with the reporting requirements but the current laws are somewhat ambiguous and unclear as they relate to when individual reporting is required and aggregate reporting permissible,” Weaks wrote in his email.
There are no guidelines or deadlines for amending lobbying reports. In fact, several lobbyists and one lobbyist employer violated a rule requiring that spending of $500 or more during the legislative session be reported within 48 hours of the expenditure.
The Pew Charitable Trust reported paying NextWave Advocacy more than $20,000 on Feb. 10 for “grassroots advocacy” to increase dental care for low-income and elderly residents.
But the report wasn’t filed until May 3, according to pages downloaded by NMID from the Secretary of State’s site.
A spokeswoman for the organization wrote in an email that the group failed to file a report within two days of the expense because of an “internal error.”
CenturyLink lobbyist Katherine Martinez filed a 48-hour report on April 24 that she spent $3,500 for a Jan. 22 dinner. Realtors Association lobbyist David Oakeley filed a 48-hour report on May 1 that he spent $3,000 for a Jan. 24 dinner.
Such late filing isn’t confined to this year. NMID found at least six other 48-hour reports filed late in 2014, 2015 and 2016. In a couple of instances, they were months late.
But it would be virtually impossible to know about such spending if reports weren’t filed by the lobbyists.
Deputy Secretary of State John Blair said that in addition to creating stronger rules for lobbyist reporting, the office also hopes to step up enforcement. Lobbyists may be fined for late or incorrect reports, but it doesn’t appear they have been in the past.
But, Blair said, “We do need guidance from the Legislature to provide more clarity.”
Advocacy and advertising
Another area of the lobbying law that appears unclear deals with advertising.
The law requires any organization that spends $2,500 or more on advertising to influence public officials to report such spending if it isn’t reported by a registered lobbyist.
That provision is spelled out in lobbyist guidelines issued in December 2015. But it apparently wasn’t used until 2016, the year after the guidelines, Blair said. Because of that, filings under that provision are only available on paper for 2016 and this year.
In 2016, eight groups reported spending $227,315 on advertising, phone calls and mailings, according to filings NMID received this week from the Secretary of State.
This year, four groups reported spending $90,450 on similar outreach expenses, aimed at getting citizens to contact lawmakers on various issues, according to paper records NMID received.
Another $154,000 in advocacy spending was reported by lobbyists online through May 1.
None of the spending reported via paper and the Secretary of State’s online system appears to overlap, meaning groups spent more than $244,000 on advocacy the first four months of this year.
The Secretary of State’s online system isn’t set up to receive and post the advertising-only filings online.
The office has requested $950,000 for software upgrades in the past two years. The allocation was included in this year’s capital outlay bill, which was vetoed by Martinez.
But Toulouse Oliver reiterated that rules won’t solve all the ambiguities in the system. At some point, she said, lawmakers need to step in.
“We are always going to be beholden to what is in statute,” she said. “The overall goal moving forward is going to be to tighten up the statute.”