{"id":18957,"date":"2010-06-30T15:14:02","date_gmt":"2010-06-30T21:14:02","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=18957"},"modified":"2010-07-01T08:08:28","modified_gmt":"2010-07-01T14:08:28","slug":"appeals-court-backs-nonprofits-in-fight-with-ag-sos","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2010\/06\/appeals-court-backs-nonprofits-in-fight-with-ag-sos\/","title":{"rendered":"Nonprofits get appellate court\u2019s backing in fight with AG, SOS"},"content":{"rendered":"
\"\"<\/a>

Secretary of State Mary Herrera (left, courtesy photo) and Attorney General Gary King (right, photo by Heath Haussamen)<\/p><\/div>\n

A federal appeals court has upheld a lower court\u2019s rejection of an attempt by the secretary of state and attorney general to force two nonprofits to register as political committees.<\/p>\n

Because the nonprofits\u2019 central purpose isn\u2019t advocacy for candidates, and their election-related expenses don\u2019t make up a preponderance of their budgets, they can\u2019t be forced to register as political committees, the ruling<\/a>, which the 10th Circuit Court of Appeals issued today, states.<\/p>\n

A New Mexico law that Attorney General Gary King<\/a> and Secretary of State Mary Herrera<\/a> have said requires the groups to register as political committees because they spend at least $500 a year for political purposes isn\u2019t constitutional, the court ruled. It called the law\u2019s classification of a \u201cpolitical committee\u201d based on a $500-a-year benchmark \u201cpolitically infirm.\u201d<\/p>\n

King\u2019s spokesman, Phil Sisneros, had no immediate comment, saying the AG had not yet seen the ruling. Herrera did not immediately respond to an e-mail seeking comment.<\/p>\n

The nonprofits, on the other hand, were quick to comment.<\/p>\n

\u201cThe decision by the\u00a010th Circuit Court of Appeals\u00a0affirms the right of nonprofit organizations to hold public officials accountable.\u00a0It also affirms the right of nonprofit organizations to educate the public and engage them in their democracy,\u201d said Center for Civic Policy<\/a> (CCP) CEO Matt Brix.\u00a0\u201cWe hope with this decision that this matter can finally be put to rest.\u201d<\/p>\n

SouthWest Organizing Project<\/a> (SWOP) Executive Director Robby Rodriquez added that the decision \u201cvalidated what we\u2019ve said all along, which is that\u00a0Attorney General Gary King\u00a0was inexplicably trying to abridge our right to free speech.\u201d<\/p>\n

\u201cAnd his pursuit of the case despite well-established law has had a\u00a0chilling effect\u00a0on free speech in this state,\u201d Rodriquez said.<\/p>\n

Groups \u2018do not qualify as political committees\u2019<\/h3>\n

<\/p>\n

The longstanding fight between the state officials and New Mexico Youth Organized (NMYO) \u2014 which is a project of CCP \u2014 and SWOP took a turn in favor of the nonprofits in August<\/a>, when U.S. District Judge Judith C. Herrera issued a 30-page decision<\/a> stating that mailers\u00a0like this one<\/a> sent out two to three months before the 2008 primary don\u2019t meet the narrow definition in federal law of political activity and thus can\u2019t be regulated as such.<\/p>\n

Under federal law, nonprofits don\u2019t 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.<\/p>\n

The 10th Circuit stated in its ruling that there are two tests to determine an organization\u2019s primary purpose: \u201cexamination of the organization\u2019s central organizational purpose\u201d and \u201ccomparison of the organization\u2019s electioneering spending with overall spending to determine whether the preponderance of expenditures is for express advocacy or contributions to candidates.\u201d<\/p>\n

\u201cUnder either approach of the major purpose test, the organizations here do not qualify as political committees,\u201d the court\u2019s ruling states.<\/p>\n

The ruling states that the groups have never advocated for the election or defeat of any candidate for office and that both are focused on education and nonpartisan get-out-the-vote activities.<\/p>\n

In addition, the court ruled, \u201cthere is no indication that either group spends a preponderance of its expenditures on express advocacy or contributions to candidates.\u201d And, the court said, \u201cthere is no evidence in the record to contradict the declarations from the parties that they do not engage in advocacy for candidates or make contributions to them.\u201d<\/p>\n

Will King appeal to U.S. Supreme Court?<\/h3>\n

It\u2019s the point about advocating for candidates that the attorney general and secretary of state dispute. King has said the groups\u2019 mailers crossed the line between issue advocacy and political campaigning as defined by the state\u2019s\u00a0Campaign Reporting Act<\/a>. He alleges that they were designed to help progressive legislative candidates win elections.<\/p>\n

In addition to contending that the mailers were about the special session, not an election, the nonprofits have said all along that federal law trumps the state Campaign Reporting Act. The courts have agreed.<\/p>\n

When the 10th Circuit ruling points out that there is \u201cno evidence in the record\u201d to prove King\u2019s allegation that the mailers crossed a line, it\u2019s essentially saying that King has been unable to back up his claim. King has also done little to back up his allegation publicly except to say that if it \u201cwalks like a duck and quacks like a duck, then it\u2019s probably a duck.\u201d<\/p>\n

King also said<\/a> \u2013 long before a lawsuit was filed \u2013 that he expected the courts to decide the issue. He hasn\u2019t said whether he will appeal the 10th Circuit ruling to the U.S. Supreme Court.<\/p>\n

Update, 3:25 p.m.<\/strong><\/p>\n

Deputy Secretary of State Don Francisco Trujillo II said his office will review the ruling with the AG.<\/p>\n

Update, 4:35 p.m.<\/strong><\/p>\n

Sisneros, the AG spokesman, said this:<\/p>\n

\u201cWe are currently carefully reviewing the decision and considering our options on how to respond.\u00a0Attorney General King\u00a0continues to believe that if organizations want to campaign in\u00a0New Mexico\u00a0then they should have to disclose where their funding comes from.\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

UPDATED: A federal appeals court has upheld a lower court\u2019s rejection of an attempt by the secretary of state and attorney general to force two nonprofits to register as political committees. Will the AG appeal the case to the U.S. Supreme Court?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,1],"tags":[162,113,107],"class_list":["post-18957","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","category-uncategorized","tag-2008-election","tag-nonprofits","tag-roundhouse"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/18957","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=18957"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/18957\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=18957"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=18957"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=18957"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}