Court sides with nonprofits in dispute with SOS, AG
Judge says nonprofits’ mailers are ‘precisely the type of political expression that is constitutionally protected’ 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’s Office to force them to register as political action committees violates their First Amendment right to free speech.
The 30-page decision, issued by U.S. District Judge Judith C. Herrera, states that mailers like this one sent out by New Mexico Youth Organized (NMYO) — which is a project of the Center for Civic Policy (CCP) — and SouthWest Organizing Project (SWOP) 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.
The mailers, Herrera wrote in her decision, didn’t 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.
“Rather 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,” the decision states. “This is precisely the type of political expression that is constitutionally protected.”
Herrera wrote that such mailers can’t be subject to regulation unless they use “express words of advocacy such as ‘vote for’ or ‘defeat’” or there is no other way to interpret the mailers than as “an appeal to vote for or against a specific candidate.”
Secretary of State Mary Herrera and her spokesman did not immediately respond to requests for comment. A spokesman for the Attorney General’s Office — which has been advising the SOS in the matter — said he would try to obtain comment from officials in his office.
The ‘chilling of protected First Amendment activity’
Attorney General Gary 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 the special session, not an election, the nonprofits have said all along — and the judge agreed today — that federal law trumps state law.
Under federal law, nonprofits don’t 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’t comply.
The judge also took issue with that.
“… because the Secretary of State has unequivocally indicated that Plaintiffs are subject to penalties if they fail to register as political committees, Plaintiffs have ‘suffered the constitutionally sufficient injury of self-censorship through the chilling of protected First Amendment activity,’” the decision states, quoting from a prior federal court ruling upon which today’s decision is based.
Getting back to ‘educating the public’
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. There have also been unsuccessful legislative attempts to force such nonprofits to disclose their donors.
Matt Brix, CCP’s policy director, said in a news release that the 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.”
The executive director of SWOP, Robby Rodriguez, said in a news release that he’s pleased with the ruling.
“Now 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,” he said.
Update, 1:10 p.m.
“We are happy that today’s court ruling concerning nonprofit activity in New Mexico was in support of not only freedom of speech, but the rule of law,” said Mario Sanchez, a consultant for the group. “Upon review of today’s 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.”
“We’ve said all along that SCC will operate under the laws and regulations of which we are organized under IRS statute, which trumps any ‘quack’ opinion handed down by the state,” Sanchez said. “SCC is looking forward to working at educating and engaging the people of New Mexico on those issues that are most important to our state.”
By way of disclosure, I also write for the New Mexico Independent, which is owned by the Center for Independent Media 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.
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