{"id":40473,"date":"2012-05-31T07:27:01","date_gmt":"2012-05-31T13:27:01","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=40473"},"modified":"2012-06-01T05:52:23","modified_gmt":"2012-06-01T11:52:23","slug":"duran-withholds-cash-from-publicly-financed-candidates","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2012\/05\/duran-withholds-cash-from-publicly-financed-candidates\/","title":{"rendered":"Duran withholds cash from publicly financed candidates"},"content":{"rendered":"
\"Secretary

Secretary of State Dianna Duran<\/p><\/div>\n

The secretary of state\u2019s decision means six Public Regulation Commission and Court of Appeals candidates are without funds state law says they\u2019re due; Dianna Duran says she\u2019s complying with a U.S. Supreme Court ruling that tossed out an Arizona matching-funds law.<\/h4>\n

The Secretary of State\u2019s Office is refusing to provide matching funds state law dictates are due to publicly financed candidates who are up against wealthier, privately financed campaigns.<\/p>\n

To back up her decision, Secretary of State Dianna Duran<\/a> cites a recent U.S. Supreme Court ruling that struck down a similar law in Arizona in 2011<\/a>. As a result, six Public Regulation and Court of Appeals candidates are currently without funds state law says they\u2019re due.<\/p>\n

However, with the June 5 primary days away, the matter may not be fully resolved. A state district judge in Santa Fe will consider a request today to order Duran to release the funds.<\/p>\n

The biggest impact of Duran\u2019s decision is in the race for the Albuquerque-area District 1 seat on the Public Regulation Commission. State law dictates that Al Park\u2019s<\/a> publicly financed opponents in the Democratic primary, Cynthia Hall<\/a> and Karen Montoya<\/a>, are each due $61,066 because Park, whose campaign is privately financed, has raised almost $139,000.<\/p>\n

In the Democratic Court of Appeals primary, Victor S. Lopez<\/a> is due $21,727 under the N.M. Voter Action Act<\/a> because opponent M. Monica Zamora<\/a> has raised $107,475. And in the PRC District 3 primary, Danny Maki\u2019s<\/a> raising of almost $42,000 means his three Democratic primary opponents \u2013 Valerie Espinoza<\/a>, Brad Gallegos<\/a> and Virginia Vigil<\/a> \u2013 are each due $1,730.90.<\/p>\n

\n
Relevant documents<\/div>\n
\u2022 The Republicans\u2019 lawsuit<\/a><\/div>\n
\u2022 Secretary of State Dianna Duran\u2019s statement<\/a><\/div>\n
\u2022 State Election Director Bobbi Shearer\u2019s affidavit<\/a> (includes AG\u2019s advice)<\/div>\n<\/div>\n

\u2018Two conflicting legal directives\u2019<\/h3>\n

The decision to withhold the funds came early this week and followed two federal court hearings in a lawsuit<\/a> filed by the Bernalillo County GOP and others challenging the constitutionality of New Mexico\u2019s matching funds provision. A judge denied a request from the plaintiffs \u2013 and Park, who filed a motion to intervene in the lawsuit last week \u2013 to issue a temporary restraining order requiring Duran to withhold the funds.<\/p>\n

Even though the judge denied that motion, Duran decided to withhold the funds. In a statement<\/a> provided by Chief of Staff Ken Ortiz, Duran\u2019s office said the attorney general advised that the New Mexico law was probably unconstitutional, but said Duran should issue the matching funds anyway unless a court ordered otherwise.<\/p>\n

Duran rejected that advice, saying she is \u201cfaced with two conflicting legal directives\u201d \u2013 a state law requiring the disbursement of funds and a U.S. Supreme Court ruling that says such disbursements would violate the constitutional rights of non-publicly financed candidates and their donors. Duran\u2019s statement acknowledged that the federal judge hasn\u2019t deemed the N.M. law unconstitutional.<\/p>\n

Duran\u2019s office was likely to face additional legal action either way, the statement read. It added that the federal judge admitted concern that disbursing the funds might lead to a lawsuit alleging a violation of the rights of the non-publicly financed candidates.<\/p>\n

\u201cFollowing the definitive statement from the Attorney General\u2019s Office regarding the unconstitutionality of the statute, and the court\u2019s observation that such a course of action could represent a violation of constitutional rights under federal law, the Secretary of State\u2019s Office will not issue the matching funds at this time,\u201d Duran\u2019s statement reads.<\/p>\n

\u2018No basis for withholding the funds\u2019<\/h3>\n

PRC candidate Hall had filed a request in state district court in Santa Fe a week ago seeking an order to force Duran to release the funds. She told NMPolitics.net she spent Wednesday at the courthouse trying \u2013 with success \u2013 to get a hearing scheduled. It will be held at 4 p.m. today.<\/p>\n

\u201cThe Republican Party and Al Park are trying to gut the public financing law in New Mexico by eliminating the matching provision,\u201d Hall told NMPolitics.net. \u201cThe politics behind why the matching funds are being withheld is yet another reason why the PRC commissioners should be appointed by a politically-neutral body and not elected at all.\u201d<\/p>\n

NMPolitics.net asked all candidates in the three affected races for comment by e-mail. Park is among those who have not yet responded.<\/p>\n

Hall said Duran has no discretion to decide whether to disburse matching funds because the N.M. Voter Action Act says she \u201cshall\u201d do it in cases where publicly financed candidates are outraised or outspent by privately financed opponents.<\/p>\n

That\u2019s essentially what the AG told Duran. Assistant AG Scott Fuqua advised that the matching-funds provisions in state law \u201care constitutional until a court determines otherwise,\u201d an affidavit<\/a> from state Elections Director Bobbi Shearer filed in the case reveals. Since a court hasn\u2019t issued such a ruling, Fuqua wrote in a May 25 e-mail to Duran, \u201cthe Secretary of State\u2019s office is not enjoined from complying with the matching funds provision of the Voter Action Act.\u201d<\/p>\n

\u201cGiven that legal landscape, there is no basis for withholding the funds and your office should provide them if requested,\u201d Fuqua wrote.<\/p>\n

Other candidates comment<\/h3>\n

Cheryl Harris, campaign manager for Court of Appeals candidate Lopez, said Lopez is \u201ccommitted to preserving the Voter Action Act as an option in judicial races because of the need for judges to avoid the appearance of corruption when those who appear before a judge give contributions to that judge, particularly at fundraisers attended by the judge.\u201d Lopez entered the lawsuit in opposition to the motion from the Republicans to stop the disbursement of funds.<\/p>\n

\u201cJudge Lopez\u2019s campaign committee is disappointed that the secretary of state is choosing not to implement the law,\u201d Harris said.<\/p>\n

Gallegos, the PRC District 3 candidate, said he\u2019s not surprised \u201cthat this is happening with a Republican secretary of state.\u201d J. Miles Hanisee<\/a>, the Republican Court of Appeals incumbent who will face Lopez or Zamora in November, said he\u2019s not going to intervene.<\/p>\n

\u201cThe United States Supreme Court has ruled that the matching funds provisions within public financing statutes are unconstitutional,\u201d he said. \u201cI accept that ruling, and because of it have chosen not to intervene in the ongoing litigation.\u201d<\/p>\n

The U.S. Supreme Court ruling<\/h3>\n

It was in July 2011 that the U.S. Supreme Court tossed out Arizona\u2019s matching-fund provision in its public financing law. The 5-4 decision said a state\u2019s attempt to level the playing field wasn\u2019t fair to privately financed candidates.<\/p>\n

\u201cLeveling the playing field can sound like a good thing,\u201d Chief Justice John Roberts wrote in the majority opinion, according to the Christian Science Monitor<\/a>. \u201cBut in a democracy, campaigning for office is not a game. It is a critically important form of speech.\u201d<\/p>\n

\u201cThe First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom \u2013 the \u2018unfettered interchange of ideas\u2019 \u2013 not whatever the State may view as fair,\u201d Roberts wrote.<\/p>\n

In New Mexico, the Republicans\u2019 lawsuit<\/a> states that the matching-funds provision violates the First and Fourteenth amendments to the U.S. Constitution \u201cby forcing candidates and independent political groups to abide by arbitrary expenditure limits, thus infringing on and chilling protected political speech and association without a sufficiently compelling governmental reason for doing so and without being narrowly tailored to achieve any legitimate governmental interest.\u201d<\/p>\n

The law is \u201cdesigned to equalize the relative financial resources of candidates, operate in a punitive and coercive manner against privately funded candidates, and will chill future political participating by unsubsidized candidates and independent groups,\u201d the lawsuit states.<\/p>\n","protected":false},"excerpt":{"rendered":"

The secretary of state\u2019s decision means six PRC and Court of Appeals candidates are without funds state law says they\u2019re due; Dianna Duran says she\u2019s complying with a U.S. Supreme Court ruling that tossed out an Arizona matching-funds law.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[156,223,161,217],"class_list":["post-40473","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","tag-2012-election","tag-campaign-finance","tag-judiciary","tag-prc"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/40473","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=40473"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/40473\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=40473"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=40473"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=40473"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}