Federal judge sides with nonprofit right to free speech

An image from a mailing targeting ex-state Sen. Shannon Robinson that eventually helped trigger Monday's court ruling.

A federal court on Monday ruled that the state of New Mexico had violated two nonprofits’ rights to free speech last year by attempting to force them to disclose the origin of the money that had paid for mailers that were critical of state lawmakers.

The legal issue before the court was whether “the mailings, are unambiguously campaign related,” Judge Judith Herrera wrote in the 30-page opinion issued Monday.

The judge found that they were not by using a complicated analysis touching on several U.S. Supreme Court rulings. Therefore, she wrote, the nonprofits were not subject to a state law that would have required the nonprofits to register as a political committee.

The ruling was a serious rebuff for Secretary of State Mary Herrera and Attorney General Gary King, both of whom had contended that the mailers were essentially “electioneering” and had triggered a state law that required them to register as “political committees.” Herrera sought late last year to force the two nonprofits to register with the state, and in turn the nonprofits sued in federal court.

Meanwhile, the ruling was seen as a serious victory in New Mexico’s nonprofit community.

“This ruling represents 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,” said Matt Brix of the Center for Civic Policy, which oversees New Mexico Youth Organized, one of the nonprofits at the heart of the lawsuit.

Added Mario Sanchez, a spokesman for a just-formed nonprofit Southwest Citizens Coalition: “We’ve said all along that SCC will operate under the laws and regulations of which we are organized under [Internal Revenue Service] statute, which trumps any quack opinion handed down by the state.”

Had the nonprofits been forced to register as a political committee they would have been subject to much stricter disclosure requirements than they operate under currently, including the disclosure of not only the identity of their donors but the amounts given. The federal law governing nonprofits does not require a nonprofit to disclose either.

The mailers at the heart of the court case were the product of New Mexico Youth Organized and SouthWest Organizing Project. And they were sent out at least two months prior to the June 2008 primary election. Along with criticizing the voting record of several state lawmakers, the mailers also included the amount of monetary contributions the lawmakers had received from certain industries.

In essence, the legal issue before the federal courts was what exactly is political speech, in the sense of political speech that seeks to influence a political election in general, including the election or defeat of individual candidates.

New Mexico’s political community has hotly debated the issue of political speech ever since the two nonprofits sent the mailings out to the lawmakers’ constituents several months prior to the 2008 primary election.

Three Democratic state lawmakers who lost the primary election in part blamed their loss on the mailers and sued the nonprofits in state court. That complaint was later thrown out. Click here to see an example of a mailer.

Some current and former elected officials said Monday that Judge Herrera’s ruling would open the door to a dramatic profusion of nonprofits as people would try to use them as clearinghouses for money to influence future elections.

“It’s bad, bad, bad. Just because a court makes a ruling doesn’t mean they are in the right,” said former state Rep. Dan Silva, an Albuquerque Democrat who was one of the targets of last year’s mailings.

“I think I am going to start my own nonprofit. “That way I can destroy good candidates,” Silva said, adding that he was very disappointed in the court ruling.

Shannon Robinson, a former state senator who also lost in the June 2008 primary, placed blame for Monday’s ruling on King, the attorney general.

Robinson said that instead of deposing witnesses and investigating the matter, the office of the attorney general agreed with the nonprofits on seeking a summary judgment from the judge.

“This was the cover up by the attorney general to pretend he was in a fight, and he threw the fight,” Robinson said Monday night. “The attorney general declined to do any investigation and the people of New Mexico lost the opportunity… to know where the money came from” that was used to pay for the mailers.

Other elected officials said the ruling would create an unfair situation going forward for political candidates because nonprofits would have unlimited resources and would not have to report where their money came from if they targeted political candidates.

That concern has repeatedly surfaced as state lawmakers debated certain campaign and ethics reform measures. This year the New Mexico Legislature passed a law to cap contributions for the first time in state history. Until then, New Mexico had been among a handful of states that did not limit campaign contributions.

Lawmakers also considered several measures that would have placed limits on nonprofits during this year’s legislative session, but none of them passed.

“There needs to be some level of fairness on reporting,” said Senate President Pro Tem Tim Jennings, D-Roswell. “Everybody who wants to do campaigning reporting is going to set up a nonprofit and you don’t have to report to anybody.”

It is unclear whether Monday’s ruling by Judge Herrera will be the last word on the issue.

A spokesman for Attorney General Gary King expressed disappointment at the ruling and left open the possibility of an appeal.

“We will take some time to thoroughly review the court’s decision before deciding our next course of action,” King spokesman Phil Sisneros said in a statement. “We are assessing our options and will likely make that public in a few days.”

He said he imagined that one of those options was filing an appeal to overturn the judge’s ruling.

Secretary of State Mary Herrera said she had no comment on the ruling.

“We’re going to be meeting with the Attorney General’s office” in the next few days, she said.