{"id":384076,"date":"2017-07-09T15:36:17","date_gmt":"2017-07-09T21:36:17","guid":{"rendered":"http:\/\/nmpolitics.net\/index\/?p=384076"},"modified":"2017-07-09T17:31:16","modified_gmt":"2017-07-09T23:31:16","slug":"secretary-of-states-power-grab-on-nonprofit-privacy","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2017\/07\/secretary-of-states-power-grab-on-nonprofit-privacy\/","title":{"rendered":"Secretary of state\u2019s power grab on nonprofit privacy"},"content":{"rendered":"

COMMENTARY:\u00a0<\/strong>We all know how a bill becomes a law, right? A lawmaker writes a bill, the legislature passes it, and then the governor signs it.<\/p>\n

\"Bradley

Courtesy photo<\/p>

Bradley Smith<\/p><\/div>\n

At least, that\u2019s what New Mexico\u2019s Constitution says. Unfortunately, losers in the legislative process are increasingly willing to ignore that process, and a rulemaking currently underway in Santa Fe shows how.<\/p>\n

This spring, the New Mexico Legislature considered imposing new donor disclosure rules on nonprofit organizations. The measure was vetoed by Governor Martinez over privacy concerns. Now Secretary of State Maggie Toulouse Oliver is attempting to impose those rules by bureaucratic fiat, using a regulation to enact what couldn\u2019t be done through the normal lawmaking process.<\/p>\n

Bureaucratic rulemakings can serve an important function. They help to implement and clarify laws that are passed by the Legislature.<\/p>\n

But here, instead of implementing the law, the Secretary of State\u2019s Office is enacting rules that were rejected in the constitutional lawmaking process. Although pitched as \u201cpolitical disclosure,\u201d as Governor Martinez wrote in her veto message<\/a> in April, \u201cthe broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances.\u201d<\/p>\n

Furthermore, the rules, if adopted, will almost certainly be challenged in court. It wouldn\u2019t be the first time New Mexico got itself in hot water by adopting \u201cbroad language\u201d to try to \u201cimprove\u201d political transparency.<\/p>\n

In New Mexico Youth Organized v. Herrera<\/em><\/a>, the Tenth Circuit Court of Appeals held that New Mexico\u2019s definition of \u201cpolitical committee\u201d was unconstitutional. The case concerned two progressive nonprofits that had spent a small portion of their budgets criticizing candidates for ties to health insurance interests.<\/p>\n

\"Paul

Courtesy photo<\/p>

Paul Gessing<\/p><\/div>\n

Nevertheless, the Secretary of State\u2019s Office now wishes to regulate this type of private activity. Forcing nonprofits to comply with rules akin to those for political committees conflicts with the Tenth Circuit\u2019s clear guidance that PACs may \u201conly encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.\u201d If the defeated bill is enacted as a regulation, citizens will likely see their tax dollars spent defending a rule already rejected in the legislative process.<\/p>\n

Even if the state were to prevail in court this time around, these nonprofit disclosure rules would not improve politics in New Mexico. If every citizen group that speaks about candidates\u2019 policy positions and voting records has to behave like a PAC, pretty soon only PACs will have a voice in elections. Grassroots and volunteer-run groups like New Mexico Youth Organized won\u2019t be able to afford the attorneys necessary to comply with complex reporting rules.<\/p>\n

How does that help the average New Mexican voter?<\/p>\n

Nonprofit speech about candidates allows voters to hear the varied perspectives of groups that do valuable work in our communities. For a variety of religious, civic and political reasons, many donors to these organizations do not want to have their names and home addresses published online for their bosses and nosy neighbors to see. Rest assured, many groups will choose silence over exposing their supporters\u2019 private information.<\/p>\n

Political transparency and personal privacy don\u2019t have to contradict. Political committees can be made to disclose their donors without inhibiting everyone else from speaking. Donors who earmark their nonprofit gifts for campaign-related speech can be reported to the government without violating everyone else\u2019s privacy.<\/p>\n

The secretary\u2019s proposed rules, however, would sweep up charities<\/a> and their supporters as well. This isn\u2019t just political speech. Just mention a candidate by name near any election and you\u2019re at risk under the secretary\u2019s proposed regulation.<\/p>\n

Governor Martinez wisely chose to avoid this course of action for New Mexico. We should be cautious when considering proposals that restrict or chill charitable giving.<\/p>\n

We should especially not impose such policies through a subversion of the democratic process.<\/p>\n

If this matter was appropriate to be handled by the secretary of state, it would never have been submitted to the Legislature and governor. The secretary\u2019s proposed rules are both bad in substance and an abuse of her rulemaking authority.<\/p>\n

Bradley A. Smith, who served on the Federal Election Commission from 2000 to 2005, is chairman and founder of the Center for Competitive Politics<\/a>, <\/em>the nation\u2019s largest organization dedicated solely to protecting First Amendment political rights.\u00a0Paul Gessing is the president of New Mexico\u2019s\u00a0Rio Grande Foundation<\/a>, an independent, non-partisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility.\u00a0Agree with their\u00a0opinion? Disagree? NMPolitics.net\u00a0welcomes your views. Learn about submitting your own commentary\u00a0here<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

We should be cautious about proposals that restrict or chill charitable giving.<\/p>\n","protected":false},"author":790,"featured_media":385209,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1192,16],"tags":[3324,705,107,706],"class_list":["post-384076","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary","category-guest-columns","tag-maggie-toulouse-oliver","tag-money-in-politics","tag-roundhouse","tag-transparency"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/384076","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\/790"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=384076"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/384076\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media\/385209"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=384076"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=384076"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=384076"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}