I can’t tell you how many times people complained to me last week while I was in Santa Fe that Gov. Susana Martinez remains in campaign mode during the legislative session. But it was often.
On the flip side, we now have a couple of nonprofits accusing Martinez of breaking state law by using campaign funds to pay for issue advocacy instead of campaigning.
Common Cause and Somos Un Pueblo Unido may very well be right that Martinez is violating the Campaign Reporting Act. I honestly don’t know. The law doesn’t specifically address this situation, and I’m not prepared to interpret it when the attorney general, secretary of state and courts have yet to do so.
But the entire situation raises interesting questions and may indicate that some rewording or tightening of campaign finance law in New Mexico is needed.
SOS, AG looking into situation
As I wrote last week, Martinez put her full weight behind legislation that would repeal a bill that allows undocumented immigrants to obtain driver’s licenses. That included 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.
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” and took aim at Martinez’s radio ad.
“Funding this kind of lobbying advertisement seems to be a clear violation of this statute,” he said.
Martinez countered at a news conference last week, according to KUNM radio, that she had nothing to worry about “in the sense of they were campaign funds.”
“Tax dollars were not spent in any way for any of that,” she said. “And in fact the secretary of state has said it was completely appropriate.”
Secretary of State Dianna Duran initially said the expenditure was appropriate, but is now formally considering the question. Attorney General Gary King is also looking into it, according to The New Mexico Independent.
The state GOP was quick to fire back at Common Cause, asking if it approved of a nonprofit headed by state Sen. Eric Griego, D-Albuquerque, lobbying lawmakers.
That raises all sorts of questions. Should lawmakers who are part of the oil and gas industry sponsor legislation that would benefit the industry? Should lawmakers who are educators sponsor bills that favor educators?
All good questions, but not specifically related to the Campaign Reporting Act, so they’re a topic for another time and another column.
Law doesn’t explicitly allow or forbid using funds to lobby
As for the issue of Martinez’s radio ad, Common Cause didn’t explicitly lay out its argument that the expenditure is a violation, but said its conclusion came following a “careful review” of the act.
The act doesn’t explicitly allow using campaign funds to lobby the Legislature, but it also doesn’t explicitly forbid it. What it does allow is use of campaign funds for “expenditures of the campaign” and “expenditures incurred by the candidate when seeking election to another public office.”
One could argue that every time Martinez makes a public push, she’s influencing public opinion of herself, which could be construed as campaigning. The ad’s narrator urges people to call lawmakers and tell them “you agree with the governor.” The ad also lays out why Martinez opposes the law that allows undocumented immigrants to obtain driver’s licenses.
So Martinez is primarily engaging in issue advocacy, but there may be a touch of campaigning in what she’s doing. She’s essentially challenging legislators to approve one of her top priorities or face the political consequences of being opposed to the opinions of most voters on a hot-button issue.
In doing so, Martinez is bolstering her own image by promoting the fact that she’s a strong opponent of a law polls suggest most New Mexicans oppose.
A potential gray area in the law
Lawmakers know that’s what Martinez is doing. That’s why they’re complaining that she’s still in campaign mode – and it’s why senators approved a controversial resolution last week aimed at giving them the power to shut down her webcasting of their committees.
So while Martinez is certainly engaging in issue advocacy, is she also engaging in campaigning? It seems to me that this situation illustrates the potential gray area in the Campaign Reporting Act that Duran and King need to consider.
Does Martinez’s lobbying the Legislature, while also promoting her own position on the issue, fit the definition of campaigning in the Campaign Reporting Act?
Time will tell.