November 2, 2016

State law doesn’t address concerns in latest GOP complaint against PAC

The state Republican Party is targeting a liberal political action committee for donating directly to Democratic candidates in state legislative races.

The Republican Party of New Mexico wrote a complaint to the New Mexico Secretary of State’s Office citing donations from Enchantment PAC to Senate Majority Leader Michael Sanchez, D-Belen, and Democrat Natalie Figueroa, who is challenging state House Majority Leader Nate Gentry, R-Albuquerque, as “against New Mexico statutes” and “in clear violation of the law.”

Enchantment PAC, which is also funding liberal advocacy organizations like Organizing in the Land of Enchantment, gave $1,000 to Sanchez and $600 to Figueroa during the general election cycle.

State law, however, does not address the type of spending the GOP cited in its complaint.

Reached by phone, GOP spokesman Tucker Keene referred to the written complaint, which he said the party sent in the mail to the Secretary of State on Tuesday.

“Independent expenditure committees are not supposed to spend directly to candidates, they’re required by law to be independent,”  Keene said earlier in a statement.

But Kari Fresquez, the interim elections director at the Secretary of State’s Office, said this type of campaign spending is “not addressed at all in the [New Mexico] Campaign Reporting Act.

“There’s no statutory authority in New Mexico right now that limits contributions or independent expenditures on the PACs,” Fresquez said in an interview.

While federal law prohibits independent expenditure committees from directly coordinating with candidates, the state Campaign Reporting Act doesn’t define or address what coordination or an independent expenditure is in New Mexico elections.

The issue also hasn’t been addressed in state courts.

But a federal court has given legal precedent that actually allows the type of direct spending the state GOP is taking issue with.

“PACs in New Mexico can contribute to candidates as long as they make their candidate contributions and their independent expenditures from separate bank accounts and don’t coordinate the independent expenditures with the candidates,” Common Cause New Mexico Executive Director Viki Harrison wrote in an email to NM Political Report.

This comes from a ruling from a lawsuit filed in 2011 by the same state Republican Party that is now denouncing Enchantment PAC’s donations.

That year, New Mexico Republicans challenged a state statute that capped contributions to political committees for independent expenditures at $5,000. State lawmakers approved the spending limits in 2009, a year before the Citizens United ruling.

The 10th Circuit Court of Appeals ruled this campaign contribution limit unconstitutional for violating the controversial Citizens United v. FEC Supreme Court decision, which allows unlimited donations to PACs that make independent expenditures in elections.

In that decision, the 10th Circuit Appeals Court also ruled that a “hybrid” PAC’s right to spend on both independent expenditures and directly on candidates as long as it “respects both direct contribution limits and anti-coordination laws.”

Or, in other words, if both types of expenditures are made from different bank accounts.

Fresquez said that this federal ruling can give her office “informal guidance” on her office’s decisions.

Enchantment PAC lists only one bank address on its campaign reports filed with the Secretary of State’s Office, but it’s unclear from the reports whether the PAC has multiple bank accounts.

Enchantment PAC did not return a voicemail left by NM Political Report Tuesday afternoon seeking comment for this story—we’ll update this story if they do.

Regardless, Harrison’s organization is not happy with the PAC spending loophole leftover from the court ruling, especially since it conflicts with other federal court rulings in other states.

“It is a ruling that doesn’t make sense to us,” Harrison wrote. “You can be coordinated and uncoordinated at the same time as long as the money is kept in separate accounts and the independent expenditures aren’t coordinated with the candidate.”

She said Common Cause will prioritize updating the state Campaign Reporting Act to fix the issue during the next state legislative session, which will begin in January.

In its complaint, the state GOP cites another federal case, v. FEC, a precursor to Citizens United that deemed contribution limits to independent expenditure committees unconstitutional.

Read the full complaint below:

Enchantment PAC Complaint 11.1.16 by New Mexico Political Report on Scribd