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Duran says Martinez ads didn’t violate law
Secretary of State Dianna Duran
Secretary of State Dianna Duran ruled today that Gov. Susana Martinez didn’t violate state law by using campaign funds to pay for radio ads pushing lawmakers to approve legislation would make it illegal for undocumented immigrants to obtain driver’s licenses.
“I have no reasonable belief that the Susana Martinez for Governor Committee committed any violation of the Campaign Reporting Act, and I do not intend to refer this matter to the Attorney General or district attorney,” Duran wrote in a letter to Somos Un Pueblo Unido, one of two groups that complained about the ads.
Read the letter here.
Duran said the Martinez campaign argued that the ads “promote the governor’s issues and ideas, and that the promotion of such issues and ideas are a standard campaign activity.”
Martinez fit the definition of a candidate in the law, Duran wrote.
Martinez has put her full weight behind legislation that would repeal the bill that allows undocumented immigrants to obtain driver’s licenses. That included the radio ads paid for by her campaign urging people to call their lawmakers to lobby for repeal of the law (listen here) and robocalls from the state GOP.
Common Cause was the other group to complain about the ads. In a news release sent late last week, Common Cause Executive Director Steven Robert Allen said the Campaign Reporting Act “places strict limitations on how campaign funds can be used.”
“Funding this kind of lobbying advertisement seems to be a clear violation of this statute,” he said.
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Why Duran is wrong:
The state campaign finance act is quite clear, candidates for office may only spend political contributions on:
(1) expenditures of the campaign;
(2) expenditures of legislators that are reasonably related to performing the duties of the office held, including mail, telephone and travel expenditures to serve constituents, but excluding personal and legislative session living expenses;
(3) donations to the state general fund;
(4) donations to an organization to which a federal income tax deduction would be permitted under Subparagraph (A) of Paragraph (1) of Subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended;
(5) expenditures to eliminate the campaign debt of the candidate for the office sought or expenditures incurred by the candidate when seeking election to another public office covered by the Campaign Reporting Act [11-19-25 to 1-19-36 NMSA 1978];
(6) donations to a political party or to another candidate seeking election to public office; or
(7) disbursements to return unused funds pro rata to the contributors if no campaign debt exists.
Paying for radio ads and robo calls does not constitute a ‘campaign’ expenditure. It is lobbying. In New Mexico, lobbying has a legal definition which essentially defines lobbying, broadly, as an attempt to influence the outcome of the legislative process, administrative rule making procedure, or other government policy making process. A plain reading of the facts suggests that what Martinez did here fits the definition of lobbying far more than that of ‘campaign activity’.
Duran’s analysis seems to hinge on the assumption that Martinez, at the time that the expenditures were made, was a candidate as defined by the election code. Lets see what the law has to say about that.
According to the election code, a candidate is:
E. “candidate” means an individual who seeks or considers an office in an election covered by the
Campaign Reporting Act [1-19-25 to 1-19-36 NMSA 1978], including a public official, who either has filed a declaration of candidacy or nominating petition
At the time these calls/ads were run, Martinez was neither ‘seeking’ or ‘considering’ running for an election covered by the state election code (i.e. governor). To assume otherwise would be to suggest that a governor in their first term is a perpetual candidate. The law is clear, however, in making a distinction between a candidate and elected official. Once she took the oath of office, and until she has ‘filed a declaration of candidacy or nominating petition’ candidate Martinez stopped being a ‘candidate’ and started being the governor. As such, she was not a ‘candidate’ for office at the time these expenditures were made.
Why is this observation important? Well, in two ways. Even if we accept Duran’s argument, a candidate may not spend money on lobbying. As ‘candidate’ martinez’s expenditures were lobbying under New Mexico law, she clearly violated the spending regulations mentioned above. If we assume, however, that she was not a candidate then, well, nothing really changes in the scenario I’ve just outlined. The section of law regarding how campaign funds may be spent is not triggered by whether or not someone is a ‘candidate’. The rules apply to candidates and elected official once in office, as they should….after all, they are meant to regulate the expenditure of campaign cash (both during and after the election has been concluded).
Duran is wrong in her reading of the law. While the state election code provides the SOS with the authority to investigate and report violations to the attorney general or district attorney of the district in which the alleged violation took place, the law also provides both the AG and relevant DA the ability to prosecute the case absent a referral.
The code provides for a fine of $1000 and imprisonment for up to one year, or both. Both the evidence and a clear reading of the law suggest that charges should be brought against the governor, and these penalties sought.
Regardless of party affiliation, our Governor is bound to uphold the laws of this state. To suggest that we sweep this issue under the rug would undermine the central tenant of our system of law: that no person, regardless of class, stature or position is above the law.
Salazar: I agree that Duran is smart, I have seen her in action. But if she ran this by the AG prior to voicing her opinion, she should have said so. She is reputed to have done a good job as Otero county clerk, but she is not a lawyer.
BTW, her office is rather behind in talking care of the bread-and-butter operations it is expected to handle. Here it is, going on five weeks to the deadline to file the April 11 campaign finance reprort, and the electronic form has not yet been posted on the website. Guess she has been too busy playing political games.
Wedum: Secretary Duran’s conclusion is correct and based on the law and facts associated with this matter. The conclusion is logical and pursuant to all applicable New Mexico Law. The Governor and her campaign have not violated the law.
What exactly do you think the Attorney General will say about this?? Do you think he will step in and “investigate” the current Secretary of State for completing her investigation in record time? Perhaps AG King should complete (or shall I say, START) his investigation regarding the former Secretary of State. If he was half the prosecutor he claims to be, maybe we would have seen an indictment already.
In reality, if Secretary Duran were smart (I have every reason to believe that she is), she had her legal counsel FROM the Attorney General’s office review this matter as well as assist with drafting the response she sent out.
We may not all agree with the Governor’s tactics, but they are legal under the law. The system has worked–this time!
This is good news for the Legislative Caucus. The democrats in the house introduced a bill to allow legislatures raise money during the session as long it is is for the caucus and not individual campaigns. Now all the money they raise can go to “informing the public”. good ruling we will see if it holds water.
Richard, what law do you think she broke?
Or are you just changing the subject?
I’d like to hear from our Attorney General on this.
Cry me a river Richard. Heath goes after anyone he thinks has done wrong. He’s gone after Republicans before and I don’t denounce him because I disagree. Duran is right- there was no wrongdoing. Its not like Susana used “public service ads” like Diane Denish or Rebecca Vigil Giron.
Wow, this whole article without mentioning that both Martinez and Duran are Republicans?
And what about Duran’s votes as a legislator on campaign finance restrictions?
Next time you might as well just copy and paste all GOP press releases. You already do nothing but praise Martinez, now it apparently goes for anyone who rules that her using campaign funds to lobby for a legislative activity during a legislative session is good.
Proposed new tagline for this site: “Get the Republican story.”