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Duran withholds cash from publicly financed candidates
Secretary of State Dianna Duran
The secretary of state’s decision means six Public Regulation Commission and Court of Appeals candidates are without funds state law says they’re due; Dianna Duran says she’s complying with a U.S. Supreme Court ruling that tossed out an Arizona matching-funds law.
The Secretary of State’s Office is refusing to provide matching funds state law dictates are due to publicly financed candidates who are up against wealthier, privately financed campaigns.
To back up her decision, Secretary of State Dianna Duran cites a recent U.S. Supreme Court ruling that struck down a similar law in Arizona in 2011. As a result, six Public Regulation and Court of Appeals candidates are currently without funds state law says they’re due.
However, with the June 5 primary days away, the matter may not be fully resolved. A state district judge in Santa Fe will consider a request today to order Duran to release the funds.
The biggest impact of Duran’s decision is in the race for the Albuquerque-area District 1 seat on the Public Regulation Commission. State law dictates that Al Park’s publicly financed opponents in the Democratic primary, Cynthia Hall and Karen Montoya, are each due $61,066 because Park, whose campaign is privately financed, has raised almost $139,000.
In the Democratic Court of Appeals primary, Victor S. Lopez is due $21,727 under the N.M. Voter Action Act because opponent M. Monica Zamora has raised $107,475. And in the PRC District 3 primary, Danny Maki’s raising of almost $42,000 means his three Democratic primary opponents – Valerie Espinoza, Brad Gallegos and Virginia Vigil – are each due $1,730.90.
‘Two conflicting legal directives’
The decision to withhold the funds came early this week and followed two federal court hearings in a lawsuit filed by the Bernalillo County GOP and others challenging the constitutionality of New Mexico’s matching funds provision. A judge denied a request from the plaintiffs – and Park, who filed a motion to intervene in the lawsuit last week – to issue a temporary restraining order requiring Duran to withhold the funds.
Even though the judge denied that motion, Duran decided to withhold the funds. In a statement provided by Chief of Staff Ken Ortiz, Duran’s office said the attorney general advised that the New Mexico law was probably unconstitutional, but said Duran should issue the matching funds anyway unless a court ordered otherwise.
Duran rejected that advice, saying she is “faced with two conflicting legal directives” – a state law requiring the disbursement of funds and a U.S. Supreme Court ruling that says such disbursements would violate the constitutional rights of non-publicly financed candidates and their donors. Duran’s statement acknowledged that the federal judge hasn’t deemed the N.M. law unconstitutional.
Duran’s office was likely to face additional legal action either way, the statement read. It added that the federal judge admitted concern that disbursing the funds might lead to a lawsuit alleging a violation of the rights of the non-publicly financed candidates.
“Following the definitive statement from the Attorney General’s Office regarding the unconstitutionality of the statute, and the court’s observation that such a course of action could represent a violation of constitutional rights under federal law, the Secretary of State’s Office will not issue the matching funds at this time,” Duran’s statement reads.
‘No basis for withholding the funds’
PRC candidate Hall had filed a request in state district court in Santa Fe a week ago seeking an order to force Duran to release the funds. She told NMPolitics.net she spent Wednesday at the courthouse trying – with success – to get a hearing scheduled. It will be held at 4 p.m. today.
“The Republican Party and Al Park are trying to gut the public financing law in New Mexico by eliminating the matching provision,” Hall told NMPolitics.net. “The politics behind why the matching funds are being withheld is yet another reason why the PRC commissioners should be appointed by a politically-neutral body and not elected at all.”
NMPolitics.net asked all candidates in the three affected races for comment by e-mail. Park is among those who have not yet responded.
Hall said Duran has no discretion to decide whether to disburse matching funds because the N.M. Voter Action Act says she “shall” do it in cases where publicly financed candidates are outraised or outspent by privately financed opponents.
That’s essentially what the AG told Duran. Assistant AG Scott Fuqua advised that the matching-funds provisions in state law “are constitutional until a court determines otherwise,” an affidavit from state Elections Director Bobbi Shearer filed in the case reveals. Since a court hasn’t issued such a ruling, Fuqua wrote in a May 25 e-mail to Duran, “the Secretary of State’s office is not enjoined from complying with the matching funds provision of the Voter Action Act.”
“Given that legal landscape, there is no basis for withholding the funds and your office should provide them if requested,” Fuqua wrote.
Other candidates comment
Cheryl Harris, campaign manager for Court of Appeals candidate Lopez, said Lopez is “committed to preserving the Voter Action Act as an option in judicial races because of the need for judges to avoid the appearance of corruption when those who appear before a judge give contributions to that judge, particularly at fundraisers attended by the judge.” Lopez entered the lawsuit in opposition to the motion from the Republicans to stop the disbursement of funds.
“Judge Lopez’s campaign committee is disappointed that the secretary of state is choosing not to implement the law,” Harris said.
Gallegos, the PRC District 3 candidate, said he’s not surprised “that this is happening with a Republican secretary of state.” J. Miles Hanisee, the Republican Court of Appeals incumbent who will face Lopez or Zamora in November, said he’s not going to intervene.
“The United States Supreme Court has ruled that the matching funds provisions within public financing statutes are unconstitutional,” he said. “I accept that ruling, and because of it have chosen not to intervene in the ongoing litigation.”
The U.S. Supreme Court ruling
It was in July 2011 that the U.S. Supreme Court tossed out Arizona’s matching-fund provision in its public financing law. The 5-4 decision said a state’s attempt to level the playing field wasn’t fair to privately financed candidates.
“Leveling the playing field can sound like a good thing,” Chief Justice John Roberts wrote in the majority opinion, according to the Christian Science Monitor. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech.”
“The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom – the ‘unfettered interchange of ideas’ – not whatever the State may view as fair,” Roberts wrote.
In New Mexico, the Republicans’ lawsuit states that the matching-funds provision violates the First and Fourteenth amendments to the U.S. Constitution “by forcing candidates and independent political groups to abide by arbitrary expenditure limits, thus infringing on and chilling protected political speech and association without a sufficiently compelling governmental reason for doing so and without being narrowly tailored to achieve any legitimate governmental interest.”
The law is “designed to equalize the relative financial resources of candidates, operate in a punitive and coercive manner against privately funded candidates, and will chill future political participating by unsubsidized candidates and independent groups,” the lawsuit states.
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Qui Tam:
That your ego has you conflating your ineffective, hyperbolic, and unsubstantiated attacks on the Attorney General with Heath’s competent investigative reporting is remarkably telling, and that someone objecting to your methodology and your belief that your opinion alone constitutes evidence of criminal activity is magically the same as them somehow defending someone whom they too (and with actual evidence) have criticized just shows that you are completely incapable of being the least bit rational. Just because you are obsessed with Gary King’s incompetence doesn’t mean that other serving public officials can’t also violate the same laws, nor does it mean that he’s the one to blame when they do. If you concentrated on his actual failings rather than the ones you imagine or that aren’t actually illegal (even if they perhaps should be), you might be surprised at how much more effective your attacks become.
IcarusPhoenix – I don’t have the time to go back and cut and paste all the commentary in which you defend Gary King on this blog. But the amount of time you obviously spend writing your long commentary directed at me speaks volumes about your motives. I don’t think http://www.nmpolitics.net nor I intend to stop writing commentary in regard to the congoing political criminal activity and it’s connectivity. It is for the good of the People, particularly voters.
Qui Tam:
Seriously, step back and take one look at how incredibly bizarre your actions in this conversation alone have been; I objected to the fact that the Secretary of State had violated the law (a law she specifically said she was going to obey), and you magically decided that my criticisms of Dianna Duran were somehow a defense of Gary King – whom I had yet to mention. His name wasn’t even part of the conversation until you randomly decided that someone not specifically criticizing him for someone else’s actions constituted a defense of him. Have you completely lost your sense of perspective?
You’re making up my position and arguing with a phantom, kid; Where do you see me defending Gary King for his actions? Indeed, in the article you link to, I wasn’t even involved in the conversation. My criticisms of the Attorney General have been quite vocal, and, unlike yours, effective as they are confined to his verifiable actions rather than than things we can’t actually pin him with effectively or sometimes even prove, and your biggest objection to me has been my refusal to engage in the overblown hyperbole and obsessive insistence on invoking him in every conversation that merely makes you look irrational and damages the positions of his other critics by allowing his defenders to tie us to your vitriolic personal crusade. You are the classic example of your own worst enemy; You are an absolutist who has decided that something becomes true the moment you decide to believe it, that people who object to your methodology or ask for verification are automatically both disagreeing with you and simultaneously attacking you personally, and that anyone who does not sign on 100% with your irrational, vitriolic, fact-adverse, and poorly executed personal crusade against the Attorney General is somehow defending him, no matter what their actual position on him is.
IcarusPhoenix – if “it’s not in my nature to let blatant misinformation go unchallenged, to pretend that hypocrisy is a virtue, or to pretend that someone who demonstrably has no idea what they’re talking about is an authority on a particular subject simply because they pass off their unsubstantiated and uninformed opinions off as verifiable fact”, then why do you even bother commenting? Furthermore, you have already been proven wrong about Gary King so far be it from me to not remind you that your continued defense of someone who breaks the law (See http://www.nmpolitics.net/index/2012/05/king-broke-campaign-reporting-law-fec-says/ ) is further evidence of your intellectual dishonesty which seems purposeful. Until you and others who abide and defend the status quo either wake up or become honest with yourselves, there will be no stopping those who “violate public trust”, act unethically and who are completely incompetent from representing the People in elected office. Please, please understand that fact.
Qui Tam:
Yeah, it’s not in my nature to let blatant misinformation go unchallenged, to pretend that hypocrisy is a virtue, or to pretend that someone who demonstrably has no idea what they’re talking about is an authority on a particular subject simply because they pass off their unsubstantiated and uninformed opinions off as verifiable fact. In Gary King’s defense (words that I assure you all I never thought I would write), he probably didn’t feel the need to advise the Secretary of State to obey the law, since immediately after last year’s Supreme Court ruling last year she specifically said that she would continue obeying New Mexico’s matching-funds law until a judge ruled that the Arizona ruling invalidated ours as well; it wasn’t until her own party decided – again – that money is a superior form of speech to words that she suddenly chose to violate her oath of office and commit an act that casts a fog on the fairness of our electoral system… which her office is responsible for seeing to the fairness and transparency of. This isn’t merely a demonstration of violation of the public trust by using a public office as an outpost of partisan strategy; it’s practically the definition of the act. It seems our search for a Secretary of State who is simultaneously competent and ethical will have to continue on.
For all others interested: The New Mexico Secretary of State is advised by the New Mexico Attorney General.
Ah IcarusPhoenix – you are mixing up my comments with your obsession…with me. You have the option of not reading my comments and/or responding to them.
Yeah, Qui Tam, because the Attorney General and the Secretary of State have thus far cared oh so much what the other has to say… Besides, the AG’s office can’t just give unsolicited advice to the another independent executive agency like that; it does not appear that the Secretary of State actually asked for his opinion (not that anyone can really blamer her for that, mind you). Have you become so obsessed with Gary King that you are now blaming him for other people’s unethical behavior as well as his own?
Sorry, that should read: I think…
Um, IcarusPhoenix – think the Secretary of State is advised by the Attorney General.
I am truly impressed at the Secretary’s ignorance of what “judicial precedent” actually is. Frankly, this was simply an excuse to do exactly what her party bosses wanted her to do in the first place; precedent does not mean that she has the right to shirk her duties and demean her office by refusing to uphold the law simply because someone makes a partisan claim that the Supreme Court striking down a “similar” – but not identical – law automatically negates any law they just don’t like. Until a judge rules that the New Mexico law is substantially similar to the Arizona law and therefore equally unconstitutional – which the district judge has thus far specifically refused to say by denying the GOP request for a restraining order to force Secretary Duran to do that which she decided to do anyway – the Secretary of State does not have the right to simply pick and choose which laws she is going to enforce. Combined with her earlier blatant violations of the Inspection of Public Records Act, Secretary Duran is rapidly proving herself just as unethical as her two most recent predecessors; Seriously, are they pumping some kind of bizarre mind-altering gas into that office that impairs one’s judgement?
Wow a Secretary of State in New Mexico that is actually law abiding!
Corporations are people? What blasphemy. American corporations are not necessarily even American. The controlling share can, and often is controlled by foreign people and their organizations. So unless you want this and future elections dominated by foreign voices, Saudi princes, drug cartels and tin pot dictators laundering their money by buying American stock, Chinese nations dumping their excess supply of American currency into Wall Street, you’d better dump this Supreme Court. Dump this current batch of Republicans. And dump corporate Democrats who receive contributions from unnamed corporate sources and are willing to sell their souls to Citizen’s United.
First of all if the US Supreme Court has said you can’t do this then you must comply! this is insanity that people who want to hold public office think state law can trump the US Supreme Court? Are these people from Bazzaro World?
Secretary Duran is doing exactly what she should do and that is comply with the decision of the US Supreme Court, unlike other folks who have served in this office or other offices who believe it is their job to pick and choose the laws they follow, Secretary Duran is doing the right thing. Now if the Legislature wants to change the law come back and do so but this has been settled by the US Supreme Court.
I am shocked to see the attorney from the AG who basically said, look until they come here and specificlly stop us in NM we should do what we are doing? I gues the US Supreme Court has no meaning to the folks in the AG’s Office either? It just goes to show you the level of contempt for the system by Liberals when it doesn’t work in their favor…
The SCOTUS has spoken, why waste state money fighting lawsuits you know you will lose? Who knows how many millions NM taxpayers would throw at fighting this over many years, this woman made the right call.
She’s not a lawyer, she’s not a judge, but she is a Republican, and NO comes easy to her.