{"id":4775,"date":"2009-08-03T12:29:00","date_gmt":"2009-08-03T18:29:00","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/2009\/08\/court-sides-with-nonprofits-in-dispute-with-sos-ag\/"},"modified":"2009-08-03T12:29:00","modified_gmt":"2009-08-03T18:29:00","slug":"court-sides-with-nonprofits-in-dispute-with-sos-ag","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2009\/08\/court-sides-with-nonprofits-in-dispute-with-sos-ag\/","title":{"rendered":"Court sides with nonprofits in dispute with SOS, AG"},"content":{"rendered":"

\"\"<\/a><\/p>\n

Judge says nonprofits\u2019 mailers are \u2018precisely the type of political expression that is constitutionally protected\u2019 by the First Amendment<\/span><\/p>\n

This article has been updated.<\/span><\/p>\n

A federal judge sided with two nonprofits today in ruling that an attempt by the Secretary of State\u2019s Office to force them to register as political action committees violates their First Amendment right to free speech.<\/p>\n

The 30-page decision<\/a>, issued by U.S. District Judge Judith C. Herrera, states that mailers like this one<\/a> sent out by New Mexico Youth Organized (NMYO) — which is a project of the Center for Civic Policy<\/a> (CCP) — and SouthWest Organizing Project<\/a> (SWOP) two to three months before last year\u2019s June primary don\u2019t meet the narrow definition in federal law of political activity and thus can\u2019t be regulated as such.<\/p>\n

The mailers, Herrera wrote in her decision, didn\u2019t mention any election in which the legislators might be running. Instead, they focused on an upcoming special legislative session on health care reform, cited positions taken by lawmakers in the regular session that had just ended, warned of influence corporate interests might have been trying to buy with campaign contributions and urged recipients to contact their legislators.<\/p>\n

\u201cRather than being unambiguously campaign-related and the functional equivalent of express advocacy for the defeat of a particular candidate, the ads identify an issue, give the recipients information related to that issue, and urge them to contact their legislator with respect to that issue,\u201d the decision states. \u201cThis is precisely the type of political expression that is constitutionally protected.\u201d<\/p>\n

Herrera wrote that such mailers can\u2019t be subject to regulation unless they use \u201cexpress words of advocacy such as \u2018vote for\u2019 or \u2018defeat\u2019\u201d or there is no other way to interpret the mailers than as \u201can appeal to vote for or against a specific candidate.\u201d<\/p>\n

Secretary of State Mary Herrera and her spokesman did not immediately respond to requests for comment. A spokesman for the Attorney General\u2019s Office — which has been advising the SOS in the matter — said he would try to obtain comment from officials in his office.<\/p>\n

The \u2018chilling of protected First Amendment activity\u2019<\/span><\/p>\n

Attorney General Gary King<\/a> has said the mailers cross the line between issue advocacy and political campaigning as defined by the state\u2019s Campaign Reporting Act<\/a>, alleging that they were designed to help progressive legislative candidates win elections. In addition to contending that the mailers were about the special session, not an election, the nonprofits have said all along — and the judge agreed today — that federal law trumps state law.<\/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. The secretary of state has threatened fines if the nonprofits don\u2019t comply.<\/p>\n

<\/span>The judge also took issue with that.<\/p>\n

\u201c\u2026 because the Secretary of State has unequivocally indicated that Plaintiffs are subject to penalties if they fail to register as political committees, Plaintiffs have \u2018suffered the constitutionally sufficient injury of self-censorship through the chilling of protected First Amendment activity,\u2019\u201d the decision states, quoting from a prior federal court ruling upon which today\u2019s decision is based.<\/p>\n

Getting back to \u2018educating the public\u2019<\/span><\/p>\n

The fight between the nonprofits and the state agencies has been the primary battleground in a debate over the work of nonprofits in New Mexico. <\/span>There have also been unsuccessful legislative attempts to force such nonprofits to disclose their donors.<\/p>\n

Matt Brix, CCP\u2019s policy director, said in a news release that the ruling \u201crepresents one more victory for the nonprofit sector in New Mexico in its battle to defend the First Amendment and fulfill its mission of educating the public about how the legislative process works and how legislators vote.\u201d<\/p>\n

The executive director of SWOP, Robby Rodriguez, said in a news release that he\u2019s pleased with the ruling.<\/p>\n

\u201cNow we can get back to the business of educating the public about how our legislators vote — a critical service to keep citizens educated and activated,\u201d he said.<\/p>\n

\n

Update, 1:10 p.m.<\/p>\n

Southwest Citizens Coalition<\/a> (SCC), a nonprofit that has been warned by the AG<\/a> against activity like the NMYO and SWOP mailers, released this statement about today\u2019s ruling:<\/p>\n

\u201cWe are happy that today\u2019s court ruling concerning nonprofit activity in New Mexico was in support of not only freedom of speech, but the rule of law,\u201d said Mario Sanchez, a consultant for the group. \u201cUpon review of today\u2019s court decision, it is evident that the state has no cause or basis in law to force groups like Southwest Citizens Coalition to register as a PAC.\u201d<\/p>\n

\u201cWe\u2019ve said all along that SCC will operate under the laws and regulations of which we are organized under IRS statute, which trumps any \u2018quack\u2019 opinion handed down by the state,\u201d Sanchez said. \u201cSCC is looking forward to working at educating and engaging the people of New Mexico on those issues that are most important to our state.\u201d<\/p>\n

By way of disclosure, I also write for the New Mexico Independent<\/a>, which is owned by the Center for Independent Media<\/a> in Washington. When the group was starting up its New Mexico news site last year, CCP helped it locate funding sources. In addition, one of my colleagues at NMI, Marjorie Childress, works for SWOP. Neither organization has tried to use those facts to influence anything I have written.<\/p>\n","protected":false},"excerpt":{"rendered":"

Judge says nonprofits\u2019 mailers are \u2018precisely the type of political expression that is constitutionally protected\u2019 by the First Amendment This article has been updated. A federal judge sided with two nonprofits today in ruling that an attempt by the Secretary of State\u2019s Office to force them to register as political action committees violates their First […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-4775","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/4775","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=4775"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/4775\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=4775"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=4775"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=4775"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}