Member-to-member mail is an unavoidable loophole in Albuquerque’s public financing system

Private communications are protected as free speech

Albuquerque’s public financing system is set up so that if outside groups spend a certain amount of money on behalf of a candidate — by sending campaign mail, for example — then the other candidates will receive matching funds in the same amount once the supported candidate runs out of his or her own allowed funds. But if that mail is sent from an organization only to its members, that expenditure can’t be tracked, and therefore can’t trigger matching funds.

This week, the National Rifle Association sent mail to Albuquerque households endorsing incumbent mayor Martin Chavez. Other member organizations are free to do the same on behalf of the other candidates. If the mail goes only to organization members on behalf of one candidate, the others won’t receive matching funds. Unlike mail that’s sent to the general public (which would trigger matching funds), member-to-member speech is protected under the First Amendment, and therefore exempt.

“It’s settled case law. If its mail to just members, it can’t be regulated,” City Attorney Bob White told NMI.

Under the public financing system, organizations that want to spend money on an election must form a measure finance committee. But if their activities — such as sending member-to-member mail — can’t be regulated, they can’t be required to register as measure finance committees.

This was a question the American Federation of State, County and Municipal Employees (AFSCME) encountered in 2007 when it sent mail to members during the municipal elections.

“It’s like talking to your family, essentially,” AFSCME’s Carter Bundy said in an interview. “Anything that would disincentivize our speech to our members isn’t allowed.”

It would be a disincentive for groups like AFSCME and the NRA to speak to their members through the mail, Bundy said, if they had to register with the government to do so.

“There are legal restraints on what we can accomplish with the system,” said Steven Robert Allen of Common Cause, a government watchdog group that supports public financing.

“Other countries, for example, can place any restriction they want on campaign literature, but we have a powerful First Amendment … and our Supreme Court has decided there’s a free speech right connected to [this],” Allen said.

The city’s first experience with public financing appears to be going well, Allen said, but he’ll be paying particular attention to these next few days.

“The problem always comes down to the last few days. … Matching kicks in when more money is spent by some outside group, but the problem is that, in the last few days, it’s hard to get the matching funds out to other candidates in time for them to use it,” Allen said.

White said that if an organization sends member-to-member mail to anyone who is not a member of the organization, then that would have to be reported. But the city can’t investigate unless a complaint is filed showing evidence of the infraction.

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Crunchy_45

No one is saying that unions or the NRA cant mail. That is not the issue. But under the city charter, the other candidates have to be matched. Why even have the law, if no one is going to follow it and the yellow-bellied clerk and city attorney don't have the nerve to enforce it.

Cowards.

freespeech22

The first amendment issue is a smokescreen. Nothing prohibits the NRA, or anyone else, from spending and saying whatever they want. But under the current law, "participating" candidates are supposed to be matched.

freespeech22

This is not the way the public financing system works in Arizona. Bob White is a shill for the mayor and should not be considered an impartial official.

You still never followed up with him as to where the distinction between a business and individual is printed in the definition of a measure finance committee.

commando73

I don't believe the word "individual" appears in the MFC definition. It uses the word "person" which defined later in the definitions to include individuals and businesses.

marjorie

Actually, I have followed up with him. If you give a direct contribution to a campaign, like Will Ferguson did to the Chavez campaign, you do not have to register as an MFC. Ferguson's contribution was in-kind, which is considered the same as cash under the rules. Apparently this is a long-standing interpretation of the code by Albuquerque officials. I think the distinction is the difference between "to aid" versus to give out right to a campaign. But if everyone who gave more than $250 to a candidate had to register as an MFC, the city would have literally 100s if not 1000s of MFC's registered, including a number of people who show up as donors this year on various campaigns records.

All I know is that this is an interpretation that predates this election cycle.

freespeech22

How "long-standing" is the interpretation? This is the first mayoral campaign under the new law.
Ask Bob White how much "cash" an individual can give to a campaign? He'll say it's limited. That would mean that Ferguson blew the limit.

z75

How "long-standing?" The U.S. Supreme Court settled the issue about 60 years ago. This is why the City Attorney won't enforce any alleged requirement for membership organizations to register with the government before spending their members' own money to speak with them. Besides, they know if they try to enforce it, the entire "matching fund" system for Albuquerque elections will be held unconsitutional, just as the Federal millionaire's amendment recently was in Davis v. FEC.

marjorie

Each candidate was given $1 per registered voter, which was $328,000. They are each also allowed an additional 10 percent of that from in-kind contributions. So, in total, a candidate can receive $32,800 in-kind. Each separate in-kind donation can not be more than 5 percent of the salary of the office sought. For the mayor, that would be a little over $5,000, I believe.

You can see that rule here: http://www.cabq.gov/clerk/documents/2009_public...

You can see the process for complaints in this document: http://www.cabq.gov/clerk/documents/2009_ethics...

commando73

So then the Democratic Party of New Mexico would be perfectly within its rights to send anti-Berry mailers to every registered Democrat within the Albuquerque city limits without having to register as an MFC. According to the party rules, every registered Democrat is a "member".

marjorie

I asked about political party's and apparently they've been considered differently under federal case law. But the member to member criteria doesn't apply for them.

z75

You are correct about this. One of the requirements under First Amendment jurisprudence for regulating an entity as a political committee, or (in Albuquerque's case) as an MFC, is that it must either: (1) be under the control of a political party or candidate; or (2) have campaign activity as its "major purpose"

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Member-to-member mail is an unavoidable loophole in Albuquerque’s public financing system

Private communications are protected as free speech

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