The appellate decision comes nearly 11 months after federal judge Judith Herrera said that New Mexico Youth Organized (NMYO) and the SouthWest Organizing Project (SWOP) couldn’t be forced by the state to register as “political committees.”

The 2009 court decision came after the state attempted to force the two nonprofits to disclose the origin of the money that had paid for mailers that were critical of state lawmakers in early 2008. Judge Herrera said the two nonprofits were protected by their First Amendment right to free speech and that Secretary of State Mary Herrera was unable to regulate that speech.

The appellate court’s decision today upheld Judge Herrera’s ruling, saying “we hold that the attempt to regulate NMYO and SWOP as political committees is unconstitutional as applied.”

Representatives from both nonprofits applauded Wednesday’s decision. A call seeking comment from the office of New Mexico Attorney General Gary King, who appealed last year’s ruling, was not immediately returned Wednesday afternoon.

“The decision by the Tenth Circuit Court of Appeals affirms the right of nonprofit organizations to hold public officials accountable,” said Matt Brix, CEO for the Center for Civic Policy, which sponsored NMYO. “It also affirms the right of nonprofit organizations to educate the public and engage them in their democracy. We hope, with this decision, that this matter can finally be put to rest.”

SWOP Executive Director Robby Rodriguez added in the release:

“The decision by the 10th Circuit today validated what we’ve said all along, which is that Attorney General Gary King was inexplicably trying to abridge our right to free speech,” said Rodriguez. “And his pursuit of the case despite well established law has had a chilling effect on free speech in this state.”

UPDATED: Phil Sisneros, spokesman for Attorney General Gary King, called back a little after 4:30 p.m. to say:

“We are currently carefully reviewing the decision and considering our options on how to respond.”

Attorney General Gary King (Photo by Heath Haussamen)

Attorney General Gary King’s office can’t say how much taxpayer money has been spent on litigation with two nonprofits, even as King appeals a judge’s ruling against his attempt to force the nonprofits to register as political action committees.

That’s because attorneys who work in the AG’s office are on staff and don’t record billable hours, so there’s no accounting of how much time and, therefore, taxpayer money they’ve spent on the case.

The time lawyers spend working on the case “does not apply as our attorneys do not track their time and are not paid by case or billable hours,” Lyn Payne, the office’s records custodian, wrote in an e-mail. That came in response to a records request asking for an account of all costs the AG’s office has incurred in the course of the lawsuit.

But clearly taxpayer money goes to the salaries of the office’s employees who are working on the lawsuit.

Payne could identify two tangible costs: the $455 filing fee paid to the 10th U.S. Circuit Court of Appeals in Denver to appeal State District Judge Judith Herrera’s recent ruling against the AG’s office, and the $72,000 Herrera has ordered the state to pay the Center for Civic Policy (CCP) and SouthWest Organizing Project (SWOP) to reimburse the organizations for the attorney fees and other costs they have incurred in the course of trying to stop the AG and secretary of state from forcing them to register as PACs.

“Tens of thousands of dollars were wasted (on the litigation with the AG), while at the same time a deficit prompted talk of cutting education and health care for the most vulnerable New Mexicans. That’s a shame,” said Matt Brix, CCP’s chief operating officer. “To make matters worse, the final price tag for New Mexico taxpayers may never be known because Attorney General King’s office cannot account for how much staff time they poured into this frivolous pursuit.”

The history

The nonprofits have contended from the start of their battle with King and Secretary of State Mary Herrera that the attempt to force them to register as PACs was unconstitutional. In early August, Judge Herrera issued a 30-page decision stating that mailers like this one sent out by SWOP and New Mexico Youth Organized (NMYO) — which is a project of CCP — two to three months before last year’s June primary don’t meet the narrow definition in federal law of political activity and thus can’t be regulated as such.

King has said the mailers cross the line between issue advocacy and political campaigning as defined by the state’s Campaign Reporting Act, alleging that they were designed to help progressive legislative candidates win elections.

In addition to contending that the mailers were about an upcoming special session of the Legislature, not an election, the nonprofits have said all along that federal law trumps state law.

The nonprofits assert — and Judge Herrera agrees — that the attempt to force them to register as PACs violates their First Amendment right to free speech. PACs have to publicly disclose information about donations, while nonprofits do not.

King has said the case has nothing to do with the First Amendment, because his office is “not trying to control the content of political ads.” He says it’s about “voters having the right to know who is paying for political advertising.”

Appeal already filed

King’s office has already filed its appeal with the 10th U.S. Circuit Court of Appeals in Denver, spokesman Phil Sisneros said. He doesn’t expect a decision from the court until sometime next year.

The AG’s office plans to pay the $72,000 that Judge Herrera ordered, Sisneros said, knowing that if the AG prevails in the lawsuit that money will be paid back.

“Our issue in this case is on the merits, and if we win, the attorneys’ fees will come back to the state,” he said.

In a recent news release that came after Judge Herrera ordered the state to pay the nonprofits’ litigation costs, the nonprofits complained that the AG is appealing the case “despite the decisive victory in district court and despite the clearly settled law in this area.”

“It is upsetting that state money is being spent on frivolous pursuits like this when a deficit is prompting discussion of cutting education and health care for children,” SWOP communications director George Lujan said in the news release.

Editor’s note: The Center for Civic Policy helped locate funding sources for The New Mexico Independent.

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.

Southwest Citizens Coalition (SCC) Chairman Allen McCulloch urged those who support “free-market values and constitutional freedoms” to unite behind the group in a recent mass e-mail.

“In the state of Colorado, left-wing non-profit organizations — like the progressive groups operating right here in New Mexico — have singlehandedly changed the face of that state’s government from free-market to ultra-liberal in just a few short years,” McCulloch’s e-mail states. “Now, these progressive groups see New Mexico as the next state to fall prey. They’re working to destroy the cause of freedom in the Land of Enchantment.”

“… The time is short. It’s time to fight fire with fire,” the e-mail states.

Democratic and Republican incumbents have lost several seats in the New Mexico Legislature and on local boards in Albuquerque and Las Cruces to progressive challengers in recent years. The attorney general and secretary of state have accused two progressive nonprofits — New Mexico Youth Organized (NMYO), which is a project of the Center for Civic Policy (CCP), and SouthWest Organizing Project (SWOP) — of engaging in political activity in last year’s legislative races with mailers like this one.

The AG alleges that the mailers were aimed at helping progressive legislative candidates win elections. Because of that, the AG says those nonprofits have to register as political action committees.

The nonprofits say the mailers were aimed at educating the public on lawmakers’ votes, not influencing the election. They point out that the mailers were sent shortly after last year’s legislative session and two to three months before the June primary.

The nonprofits have sued the AG and secretary of state to try to stop the attempt to force them to register as PACs. The lawsuit is pending.

A different type of nonprofit

There’s a difference between SCC and the progressive groups. It’s a 501(c)(4) nonprofit, while they are classified as 501(c)(3) nonprofits. The latter cannot support or oppose a candidate for office, but groups like SCC can engage in expressly political campaign activity as long as that’s not their primary activity.

McCulloch, a Farmington doctor who has run unsuccessfully for U.S. Senate and GOP party chairman in recent years, cited that difference when asked whether he expects the AG to try to force SCC to register as a PAC.

He made clear in an e-mail to the Independent that while the group will focus on “promoting the discussion of public policy issues and encouraging participation in the governmental process by all segments of society,” there’s definitely a political purpose to the organization.

“In 2008, the New Mexico State Legislature lost six pro-business Republican legislators and three pro-Second Amendment Democrats,” McCulloch wrote in the e-mail to the Independent. “These legislators were defeated by anti-business and anti-gun liberal interest groups. For the sake of protecting our state’s future and our rights as citizens, the Southwest Citizens Coalition will be standing up and fighting for these values.”

McCulloch said the group is non-partisan and will focus on education. Asked if it’s a conservative group, he said, “Our membership is diverse, and I don’t think you can apply a one-word label to it; however, we are committed to educating the public on issues of free markets and constitutional rights — especially when they’re in jeopardy.”

Lynn Southard, spokeswoman for Attorney General Gary King, pointed out the difference between what a 501(c)(3) and 501(c)(4) can do when asked about SCC, saying the group “is allowed to do some lobbying and political activity per the IRS.”

‘An outlandish distortion of our work’

SCC specifically mentions NMYO and CCP on its Web site in claiming that the efforts of “a network of ultra-liberal, progressive non-profit organizations” led to the defeat “pro-freedom” Republicans and Democrats last year.

Matt Brix, CCP’s policy director, said SCC appears to be forming “based on an outlandish distortion of our work. For example, they say that we are ‘working to destroy the cause of freedom in the Land of Enchantment.’ I’m pretty sure we don’t do that.”

Asked how SCC fits into the battle between the progressive nonprofits and the government agencies, Brix said the “actual battle has been between the secretary of state and the attorney general and the First Amendment to the United States Constitution. It’s unclear if the Citizens Coalition will also take a position against the First Amendment, or if they’ll go in a different direction.”

McCulloch didn’t opine on the battle between the progressive nonprofits and the government agencies in his e-mail, and his group doesn’t either on its Web site.

Editor’s note: The Center for Civic Policy helped locate funding sources for the New Mexico Independent.

That decision came after nearly two hours of debate by the Albuquerque Charter Review Task Force and the recognition that there weren’t enough votes to pass or kill a proposal to restrict election-year activity by nonprofits.

By a 8-4 vote, the task force drafted a motion telling the city council that it had struggled with the issue and recommended that the council discuss it further.

“It’s an important issue,” said task force member and former city councilor Vickie Perea.

The proposed amendment would have required certain entities to register as measure finance committees — the city’s version of a political action committee — if they communicated anything in support or opposition to a candidate in the four months leading up to a city election. All donors to measure finance committees must be disclosed.

Unlike most changes to the city charter, which must go to the voters for approval, the city council can still make such a change to Albuquerque’s ethics and elections codes if seven of nine city councilors support the measure, said Albuquerque City Attorney Robert White.

That means the fight over the proposal will likely go to the City Council.

The controversial proposal at Thursday’s public hearing was introduced by task force member Chuck Gara. It was widely viewed as an attempt to restrict activities by nonprofits, although Gara repeatedly denied it.

Usually a lightly attended affair, Thursday’s meeting of the charter review task force was bustling with people as representatives from more than a dozen nonprofits packed a small room on the ninth floor of City Hall to protest the idea Gara had put forth.

Under the proposal, an organization that communicated information interpreted as supportive or critical of a candidate via newspaper, TV, radio, Internet, on a billboard, by direct mail or in a door-to-door canvas within 120 days of an election would trigger the requirement.

At the heart of the issue is registration as a measure finance committee, which would require nonprofits to list donors, something that federal law does not require them to do.

Having to disclose donors could silence many nonprofits for a major part of the year, representatives of several organizations said.

And that would lead to less accountability, said Laurie Weahkee of the SAGE Council. The proposal would, in effect, “shield elected officials four months of the year from critiques from nonprofits. It is our right to know and communicate.”

Added Mary Ellen S. Capek, a consultant to New Mexico nonprofits: “It’s a chilling effect, a financial chilling effect.”

One speaker said the language in the proposal was so sweeping it could affect churches and newspapers. And several speakers said disclosing donors could negatively affect fundraising.

“One donor gave us $100,000 last year but it was on the condition of remaining anonymous,” said Claudia Medina of ENLACE Comunitario, an Albuquerque nonprofit that works on curbing domestic violence with a focus on the city’s immigrant population.

Lynne Anderson, president of National Association of Industrial and Office Properties, was the only audience member to rise in favor of the proposal.

“We have been trying to get big money out of politics,” she said. “Suddenly out of nowhere a nonprofit used that money to influence that election. I would hate to see big money get back in politics by not preventing that kind of politics.”

After hearing from the audience, task force members had a lively debate about whether to support or oppose the proposal.

Many have interpreted Gara’s proposal as the latest salvo in an ongoing war between nonprofits and elected officials that began last summer and peaked in December, when several nonprofits sued the state of New Mexico in federal court.

The suit was filed by several organizations, including the Albuquerque-based Center for Civic Policy – whose director Eli Lee sits on the charter review task force. The suit challenged the state’s order requiring the nonprofits to register as political committees and list their donors.

The state’s order came after mailers were sent out in the months prior to the state’s primary and general elections last year. The mailers targeted several incumbent state lawmakers and told constituents about campaign contributions they had received and how they had voted on certain issues.

“I don’t understand why Steve Gallegos running for governor has to report and someone else doesn’t have to,” said Dan Silva, a member of the task force and an ex-state lawmaker who was targeted by last year’s mailers. Gallegos is a fellow task force member and a former Bernalillo County commissioner.

Silva has been an outspoken critic of the nonprofits that paid for and distributed the mailers. And he, like many of his former colleagues in the Legislature, have said if political candidates have to report contributions, nonprofits should have to disclose their donors.

“Why does an organization have a higher standing?” Silva said of nonprofits.

But UNM law professor Gloria Valencia-Weber said she was surprised the city was seriously entertaining a proposal that likely wouldn’t pass constitutional muster – and would punish nonprofits to boot.

“This business of shutting off everything in 120 days is rather astounding,” she said.

“What is the role of the nonprofits in New Mexico? These are the organizations in a very poor state. … They are the gap fillers for the rest of our life. … Why are we choosing to handicap them?”

Fellow task force member David A. Standridge Jr. said he and Lee don’t agree much on politics, but he saw the danger of trying to restrict nonprofits’ activities.

“What I do dislike more is private citizens reporting to the government,” he said, referring to what he viewed as the sweeping nature of Gara’s proposal — that everyday citizens might have to register with the city.

“We need to limit government. Today the focus is on Eli. Tomorrow it will be a focus on me and my friends.

A member of the city’s Charter Review Task Force suggested Thursday amending the city’s charter with a proposal that bears a striking resemblance to ideas floated by state officials in recent months that would have accomplished that goal, including a bill that died during this year’s legislative session.

Member Chuck Gara proposed at a Thursday meeting of the task force amending the city’s charter — basically the city’s constitution — to require a host of entities that communicate anything in defense of or opposed to a candidate seeking elective office during an election year to register as a Measured Finance Committee, the city’s equivalent of a political action committee.

Under the proposal, the organization — be it a corporation, limited liability corporation, nonprofit or “any person or combination of two or more persons acting jointly” — would trigger the requirement if they communicated such information via newspaper, TV, radio, Internet, on a billboard, or by direct mail or in door-to-door within 120 days of an election.

Late last year Secretary of State Mary Herrera told New Mexico Youth Organized (NMYO) to register as a political committee and comply with the state’s campaign reporting laws.

NMYO was one of several nonprofits that sent out fliers months before the 2008 primary and general elections. Several incumbents lost their elections, and three of the ousted lawmakers unsuccessfully sued the organizations. Those legislators and others — as well as state Attorney General Gary King — characterized the fliers as political campaigning.

The nonprofits sued the state in federal court over the order that required them to register as political committees and list their donors.

Another attempt to restrict nonprofits occurred during this year’s 60-day legislative session.

A bill that had the backing of some legislative leaders would have required nonprofits to list donors who give more than $1,000 if the nonprofits participated in “electioneering.” Electioneering in that bill was defined as the naming of a political candidate in a piece of literature or a broadcast ad that targets the candidate’s constituency in the months prior to a primary election and general election. The nonprofits would have had to provide a list of donors to the secretary of state’s office.

That bill died in the Legislature, however.

While the proposal was suggested by Gara on Thursday, it is unclear if the charter review task force will include it in its report back to city officials. The City Attorney’s office was asked to look into the constitutionality of the proposal, and report back on April 23.

The committee’s unwillingness to pass the legislation with days to go in the 2009 session means the bill’s chances for passage are between unlikely and nigh impossible.

House Judiciary Committee Chairman Rep. Al Park, D-Albuquerque, said Tuesday that lawmakers have too many questions to let the bill out of committee.

“It’s not even that it is dead on the merits,” Park said. “It is dead on the complexity of the issue. It’s going to require a lot of rewriting and legislative surgery to try to make it a bill that is workable.”

Rep. Paul Bandy, R-Aztec, the sponsor of the legislation, acknowledged the difficulties ahead for legislation he had hoped would close what he saw as a loophole.

“Seems like no one likes it except me,” Bandy said Wednesday in understated fashion. The legislation was partly the brainchild of House Majority Leader Ken Martinez, D-Grants, and Senate Majority Leader Michael Sanchez, D-Belen.

Bandy’s bill would require nonprofits to list donors who give more than $1,000 if the nonprofits participate in “electioneering.” Electioneering is defined as the naming of a political candidate in a piece of literature or a broadcast ad that targets the candidate’s constituency in the three months prior to a primary election and the three months prior to the general election. The nonprofits would have to provide a list of donors to the secretary of state’s office.

Nonprofits have vocally opposed the bill for several reasons, including a concern that such a measure would abridge their right to free speech if they were required to list donors.

“We feel severely penalized by this law,” Nathan Bush, a lobbyist for the American Cancer Society, told lawmakers sitting on the House Judiciary Committee late Tuesday.

Bush added that attorneys for the society had “never seen a state try to take away our tax exempt status and give it back to us conditionally. We understand the intent of this legislation. We don’t appreciate the punitive nature of the bill.”

Supporters for the legislation point to what happened last year when nonprofits sent out fliers months before the 2008 primary and general elections. Several incumbents lost their elections, and three of the ousted lawmakers unsuccessfully sued the organizations. Those legislators and others — as well as state Attorney General Gary King — characterized the fliers as political campaigning.

The bill’s backers also link it to the push for ethics reform that would encompass state lawmakers. One prominent ethics proposal being considered this year would limit the amount of money political candidates could accept from individuals, political committees and political parties. Some lawmakers say if they have to live with limits, nonprofits should have to disclose who their donors are.

Federal law does not require nonprofits to disclose donors.

“If it’s electioneering, it should be transparent,” said House Majority Leader Martinez. “I probably agree that we can’t do it this year. It’s a difficult issue. This may be a way to get at this in the future. There’s no villains here. People trying to get transparency in elections are not villains.”

Still, supporters had a hard time supporting the bill when even a legislative analysis said it would likely run afoul of the U.S. Constitution.

The attorney general’s office has said that it is Attorney General Gary King’s conviction that the bill will survive judicial muster because it does not link “electioneering” to the state’s campaign reporting act, but to the state’s tax law.

“The state has the authority to control its own tax structure,” Bandy said.

Park said during Tuesday night’s meeting that he would “roll over,” or table, Bandy’s bill until Wednesday’s committee meeting. But on Tuesday he said it likely won’t come up again before the committee.

That wasn’t strong enough language for Rep. Mimi Stewart, D-Albuquerque.

“’Rolling over’ means that we don’t have the guts to kill it outright, and we’ll spend time re-writing it before, hopefully, we will kill it,” Stewart said during a live blog hosted by the Independent.

“I hope it never makes it out, but I’ve been wrong before. There are people on this committee who really want to punish the non-profits because they were so successful in the last elections.”

Bandy said Wednesday he might attempt one last legislative maneuver to save his bill. That would call for adding his bill as an amendment to another piece of legislation that would limit campaign contributions to political candidates.

Currently there are two campaign contribution limits bills in the House. One is a bill the Senate passed and sent over. Park is sponsoring the other. It is unclear if or when either will come up on the House floor before Saturday, when the Legislature adjourns.

“If we limit campaign contributions to the individuals and don’t try to get some kind of handle on third-party campaigning, then it’s going to move out of the candidate’s control,” Bandy said.

He is unsure of his chances, he said.

The legislation, SB 652 (pdf), seeks to avoid a repeat of the controversy that arose during the 2008 primary and general election seasons, when nonprofits distributed flyers that targeted incumbent lawmakers.

The bill, sponsored by Senate Minority Whip William Payne, R-Albuquerque, would give political candidates a tool to stop what they perceive as campaign intervention “when someone’s funneling money, or sending out mailers or anonymous phone-dialers and there’s no reporting where it’s being paid for,” he said.

“It’s a more timely manner to address an issue that could affect the outcome of an election,” Payne said.

The nonprofits that authored last year’s flyers, including the Center for Civic Policy and SouthWest Organizing Project, have said repeatedly they strictly adhered to federal Internal Revenue Service rules for 501c(3) organizations and thus did not cross the line between issue advocacy and political campaigning. The flyers did not endorse a candidate, were sent out months before either the primary or the general election and were meant to educate, the nonprofits said.

The attorney general later in 2008 ruled that the nonprofits’ activity amounted to political behavior and that they had to register as political committees and disclose their donors.

The nonprofits then sued the state in federal court to contest the order, saying that it abridged their constitutional right to freedom of speech.

Payne’s legislation passed the Senate easily, but not before a lengthy debate in which opponents amended it because they were worried that the law would create an influx of frivolous lawsuits. That amendment would require the loser in any suit filed under this law to pay all costs.

Payne’s bill also would fit like a puzzle piece with another bill (pdf) that defines exactly what political activity is and directly targets nonprofits.

That bill, HB 808, defines “electioneering” as the naming of a political candidate in a piece of literature or a broadcast ad that targets the candidate’s constituency in the three months prior to a primary election and the three months prior to the general election.

HB 808 would require nonprofits to list donors who give more than $1,000 if the nonprofits participate in such “electioneering.” Nonprofits have vocally opposed HB 808 for several reasons, including a concern that such a measure would abridge their right to free speech if they were required to list donors. Some representatives of the nonprofits also worried that the requirement to list donors could cost them donors seeking privacy.

Payne said his bill would enhance HB 808.

“It enhances a candidate’s ability to protect himself and not have to rely on the secretary of state,” Payne said. “It goes much beyond nonprofits.”

Payne said one candidate who ran last year was receiving legal contributions, but he didn’t report them. His legislation would target that type of behavior as well.

KUNM Call-in Show host Arcie Chapa

This just in from KUNM FM 89.9: “This week on the KUNM call-in show Arcie Chapa continues our look at the 2009 Legislative Session with coverage of a bill that seeks to define what nonprofits can and can’t do during an election year. If passed, the Election Communication Contribution Reporting bill will require nonprofits to list donors who give more than $5,000 if they name a political candidate in any of their print or broadcast ads during an election year. Nonprofits defend their advocacy and public education work, Thursday morning at 8 on the KUNM call-in show.”Confirmed guests on the show include Matt Brix of the Center for Civic Policy, and Ona Porter, Executive Director of Community Action New Mexico. Producers have also invited Rep. Ken Martinez, D-Grants; Sen. Michael Sanchez, D-Belen; and Assistant Attorney General Phil Baca.

NMI has been following this issue since it bubbled to the surface last year. To catch up on some of our coverage, see these stories:

Now There’s a Twist on the Proposal to Limit Nonprofits

Roundhouse leaders target nonprofits’ activity with new bill

Nonprofits can be ‘political’ in a perfectly legal way (commentary by Ona Porter)

‘Sour grapes’ lawsuit targeting ABQ nonprofits is officially dead

Mary Herrera stands firm in face of nonprofits’ federal lawsuit

AG is stalling on definition of ‘political activity,’ senator says

Progressive nonprofits file federal lawsuit

Lawsuit filed by defeated state lawmakers dismissed

Secretary of State to nonprofit: register as a political committee or face penalty

Nonprofits and politics: NM isn’t the only state to grapple with issue

Defeated Democratic lawmakers sue to overturn June 3 primary results