Editor’s Note: Last week, Think New Mexico, the statewide, independent, results-oriented think tank, launched a new initiative aimed at fundamentally rethinking the PRC. Think New Mexico identified two significant structural flaws that have impaired the PRC since its creation: the agency has a broader jurisdiction than any state utility regulatory agency in the nation and it requires almost no qualifications for its five elected commissioners. To address these problems, Think New Mexico has proposed streamlining and refocusing the PRC’s jurisdiction and enhancing commissioner qualifications. Read more about Think New Mexico’s initiative by clicking here.

Here is the introduction of Think New Mexico’s report, entitled “the Accidental Agency.”

Those present at the birth of the Public Regulation Commission (PRC) in 1996 still shudder when thinking about how it came into being.

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There was surprisingly little deliberation about the formation of what is likely the most powerful state regulatory body in the nation, with appendages reaching into the regulation of utilities, including electricity, natural gas, water, and wastewater; telecommunications; insurance, including health, property, title, and auto; motor carriers, including tow trucks, taxis, moving vans, buses, shuttles, ambulances, and railroads; oil, natural gas, and hazardous liquid pipelines; corporations; and the State Fire Marshal’s office.

Representative Bob Perls (D-Corrales), a legislator in his second two-year term, introduced House Joint Resolution (HJR) 16 near the midpoint of the thirty-day 1996 legislative session, just before the deadline for bill introductions.

At first glance, it did not seem like a big deal. HJR 16 was a relatively short bill, 54 double-spaced lines spread across three pages, but it had massive policy implications for the people of New Mexico. The bill would amend the state constitution to create a regulatory body with wider-ranging authority than that of any other state. Yet HJR 16 did not require any qualifications for the five elected commissioners who would oversee this body, other than that they must be 1) at least 18 years of age; 2) a resident of the state for at least one year; and 3) not a convicted felon. In other words, HJR 16 would place extremely broad jurisdictional authority under the control of PRC commissioners with extremely few qualifications.

Representative Perls was well-intentioned, however, and the bill had the appeal of creating a single five-member elected PRC by merging two separate regulatory bodies: the elected three-member State Corporation Commission, which regulated insurance and telecommunications (among many other things), and the appointed three-member Public Utilities Commission, which regulated electric, gas, and water utilities.

Aware of HJR 16’s ramifications, the Speaker of the House, Raymond Sanchez (D-Albuquerque), assigned it to be considered by four committees, seemingly insuring a swift and certain demise for the legislation. There were, after all, only about two weeks left to pass it during a 30-day session in which 1,901 pieces of legislation were vying for the attention of legislators.

However, with only about a week remaining in the session, a funny thing happened on the way to HJR 16’s funeral: the bill started to move through committees at an accelerating pace. Its first committee, House Voters and Elections, passed HJR 16 with “no recommendation,” legislative parlance for “we are not sure that this legislation should pass, but, as a courtesy to the sponsor, we will let him fight another day.”

Next, HJR 16 moved to the House Business and Industry Committee, which has a long and well-deserved reputation for being the committee where legislation goes to die. Surprisingly, HJR 16 survived by a 5-4 vote (with one committee member excused and two others absent).

After that, HJR 16 successfully navigated two more committees: House Judiciary and House Appropriations and Finance. The odds of its passage, however, were still stacked against it as it came up for a vote on the House Floor around 11:00 p.m., the night before the session’s adjournment at noon the next day.

HJR 16 passed the House with bipartisan support, but also bipartisan opposition, not a promising sign for Senate approval, especially given that there were only about a dozen hours left in the session.

Senator Manny Aragon (D-Albuquerque), the enormously powerful Senate President Pro Tem, assigned HJR 16 to a single Senate committee, Senate Rules, but there was no time for a committee hearing on the last frantic day of the session. HJR 16 finally appeared to be dead.

However, with only about an hour remaining until adjournment of the session, Senator Aragon made a rare parliamentary procedural maneuver. He removed HJR 16 from the Senate Rules Committee – without a hearing – and brought it directly to the Senate Floor as the next order of business. The Senate passed HJR 16 with only a few minutes remaining in the session.

The next morning, Representative Perls told the Albuquerque Journal, “It snuck through because nobody expected it to pass.” No one could argue with that assessment, as the bill had survived so many near-death experiences – more by accident than by design.

Legislative passage, however, was not the last obstacle to the creation of the PRC; it still had to be approved by the voters in the November 1996 election. It was placed on the ballot as Constitutional Amendment (CA) 6.

That year was a presidential election year, and the ballot also included U.S. Senate and Congressional races, every legislative seat, various local offices, judgeships from district court to the state supreme court, as well as local and statewide bonds. CA 6 was near the bottom of the ballot, the sixth of seven constitutional amendments.

As a consequence of the packed ballot, the constitutional amendments received very little attention in the run up to the election. There did not appear to be any organized opposition or support for CA 6, such as radio or television advertising campaigns. Key stakeholders including the Public Service Company of New Mexico and U.S. West Communications, the two largest utilities in the state, and Common Cause and the League of Women Voters were officially neutral.

Others expressed reservations, however. A month before the election, Speaker Sanchez told the Albuquerque Journal, “It is going to be way too powerful and much too subject to outside influences,” while Governor Gary Johnson, who rarely saw eye-to-eye with the Speaker, said in the same article, “My concern would be that we might somehow elect unqualified members.” Both concerns proved prescient.

Nevertheless, on November 5, 1996, CA 6  squeaked by the voters 51% to 49% and the PRC was born.

Nathan is executive director of Think New Mexico, an independent, results-oriented think tank serving New Mexicans. Fisher is Think New Mexico’s associate director.