New Mexico secretary of state sued over campaign finance rule

December 22, 2018

Four Republican state legislators want the state Supreme Court to shelve a rule implemented last year by Democratic Secretary of State Maggie Toulouse Oliver that requires more disclosure by “dark money” organizations that spend on political campaigns.

The new rule requires such groups to report the names and addresses of those contributing money above certain thresholds.

The legal challenge was filed by state Sens. William Sharer of Farmington and Mark Moores of Albuquerque, and state Reps. Jim Strickler of Farmington and David Gallegos of Eunice.

Their lawsuit says Toulouse Oliver did an “end-run around New Mexico’s Constitution” by adopting a rule based on a bill that passed the Legislature this year but was vetoed by Republican Gov. Susana Martinez.

The suit says this “extraordinary breach of New Mexico’s constitutional order lies at the heart of this case — a veto of a veto that effectively enacted law without a governor’s signature and without a veto override by the New Mexico state Legislature.”

Moores said Friday, “Maggie has a tendency to ignore legislative constitutional processes.” He noted Toulouse Oliver’s attempt to allow straight-party voting on this year’s general election ballot — a move that was shot down by the state Supreme Court.

Toulouse Oliver’s chief of staff, John Blair, said Friday he hasn’t seen the lawsuit so he couldn’t comment on specifics. “That being said, we are confident in the secretary of state’s authority to oversee New Mexico’s elections and to promulgate rules as part of that authority,” he said.

In 2017, commenting on the rule, Blair said, “Over 90 percent of New Mexicans support additional disclosure and transparency in political campaigns and we won’t be tricked by this out-of-state, hyperpartisan group funded by the Koch brothers. The draft rule does not ban anyone from participating in politics, but you will have to disclose where your money is coming from and how you’re spending it.”

A Koch-related group, Concerned Veterans for America, spearheaded opposition to the bill Martinez vetoed and the rule Toulouse Oliver implemented.

Representing the plaintiffs is Michael P. DeGrandis, senior litigation counsel for the Washington, D.C.-based New Civil Liberties Alliance, a group started by Phillip Hamburger, a former in-house counsel for Koch Industries in his native Kansas.

The lawsuit could become moot if the Legislature passes — and incoming Gov. Michelle Lujan Grisham signs — Senate Bill 3, filed this week by Senate Majority Leader Peter Wirth, D-Santa Fe. Wirth confirmed Friday that his new bill basically is identical to the one Martinez vetoed in 2017.

“We did work with the Secretary of State’s Office to make sure the disclosure portion of the bill tracks her disclosure rule,” said Wirth, who also sponsored the legislation Martinez vetoed.

Asked whether Lujan Grisham would sign Wirth’s bill, Tripp Stelnicki, a spokesman for the governor-elect, said Friday that “greater transparency in campaign finance is something she absolutely supports in principle. But she hasn’t reviewed this specific legislation yet.”

Wirth’s 2017 bill passed the Senate by a vote of 36 to 6 and the House 41-22.

Martinez wrote in her veto message: “While I support efforts to make our political process more transparent, the 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. The requirements in this bill would likely discourage charities and other groups that are primarily non-political from advocating for their cause and could also discourage individuals from giving to charities.”

In campaigning for re-election this year, Toulouse Oliver emphasized her efforts to make elections more transparent. “As secretary of state I shined a light on dark money special interests, and forced them to disclose their donors,” she said in one campaign ad. Toulouse Oliver won re-election over her GOP opponent by more than 20 percentage points.

Dark money groups are organizations — including some nonprofits — that engage in electioneering but don’t disclose funding sources. Such groups have played an increasingly larger role in elections nationwide since the U.S. Supreme Court ruling in the 2010 Citizens United case, which freed unions, corporations, some nonprofits and others to spend as much as they want on political activities as long as they do so independently of candidates.

As a result of Citizens United and other federal court decisions, government regulators of campaign activity have had to walk a fine line between First Amendment protections for political speech and public demand for greater transparency in politics.

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