Gov. Susana Martinez wants each state lawmaker to disclose how much he or she spends on projects around the state. Making their emails public would be nice, too. However, the governor isn’t keen on sharing information about legal settlements the state negotiates.
As for state lawmakers, they aren’t rushing to support calls from Martinez or some of their colleagues to shine more light on how the Legislature works.
Legislation that would help New Mexicans better understand New Mexico state government is going nowhere fast in the legislative session that ends Thursday, a review by New Mexico In Depth has found.
Only one of seven bills relating to executive and legislative disclosures, lobbying efforts and public records access that NMID has tracked appears to have a shot at clearing the Legislature. And that bill wouldn’t strengthen disclosure but return to a previous threshold for lobbyist reporting that the Legislature weakened in 2016.
That’s a signal that most of the other bills NMID has tracked aren’t long for this world.
“When you don’t get a hearing until the last week of the session it de facto kills a bill,” Sen. Jeff Steinborn, D-Las Cruces, said of his two bills that would require more disclosure from lobbyists who seek to influence state lawmakers and public officials.
The future for three bills sponsored by Sen. Sander Rue, R-Albuquerque, appear dim, too. His legislation would require each lawmaker to disclose how much money they spend on infrastructure projects and mandate an annual audit of the state’s Sunshine portal. A third bill would require the disclosure of more information about human rights violations in state government, such as sexual harassment.
“Transparency and open government, it’s a great idea when you’re running for office, not such a good idea once you get elected, and I’ll just leave it at that,“ Rue said.
There is nothing new with New Mexico’s executive and legislative branches butting heads over who should share more with the public — the governor or state lawmakers. Over the past decade there have been very public fights at the Roundhouse over legislative conference committees, which were opened to the public, and webcasting.
Many state lawmakers initially fought and then resigned themselves to webcasting legislative committees and debates on the House and Senate floors after numerous scandals involving public officials.
Across the board, New Mexico’s record for transparency and accountability has been poor, so it comes as little surprise the Legislature hasn’t prioritized transparency.
In the most recent 2015 report put out the by Center for Public Integrity for its State Integrity Investigation project, New Mexico received an overall grade of “D-”, with failing grades in public records access, accountability from both executive and legislative branches and lobbyist disclosure.
“It’s a real problem,” Steinborn said. “Transparency is always an uphill fight, frankly.”
Rep. Jim Dines, R-Albuquerque, who was general counsel for the Albuquerque Journal for 20 years, understands the sometimes-complicated relationship between the Legislature and the governor. But he holds to what some of his colleagues might consider a radical position.
“We have to have a consistency of transparency throughout all branches. Be transparent across the board,” he said.
No, you go first
That probably won’t happen anytime soon, given the pattern of New Mexico’s governors and state lawmakers who call out the other branch for secrecy but oppose similar calls that hit too close to home.
Consider Martinez’s Jan 30 executive message to the House of Representatives, clearing the way for bills that would make public business that state lawmakers discuss on their private emails subject to the state Inspection of Public Records Act, also known by its acronym IPRA.
No bill currently fits that description.
Martinez’s office and staff came in for criticism early in the governor’s tenure for failing to disclose public information from private email accounts. In late December of 2017, District Court Judge Sarah Singleton ruled in a case brought against the governor by the alternative weekly Santa Fe Reporter that the governor’s office had to search private emails and comply with the publication’s public records request.
All officials who do public business on any email are subject to IPRA, Steinborn said, but the governor’s message is hypocritical.
“The ‘do as I say, not as I do’ clearly,” Steinborn said. “I think they should certainly follow their own advice. This administration has gotten caught with high-level officials using private email.”
Another piece of legislation Martinez supports would require more openness from state lawmakers but appears unlikely to pass. SB 54, sponsored by Rue, would require state lawmakers to disclose how much they spend on infrastructure and other capital projects, using discretionary money they are allocated each year. They’re currently allowed to keep those details secret.
At a news conference during the first week of the session the governor called lawmakers out for not making capital outlay spending — also called ‘pork-barrel’ spending — public.
“I’m just hoping they do the right thing,” Martinez said. “Why can they put their name on any bill but they won’t put their name on pork?”
Rue’s bill has struggled against a couple of challenges. It couldn’t be considered by the Legislature until Jan. 24, when the Governor’s Office released the executive message. It has run up against legislative resistance, too. Some of his colleagues are concerned about criticism and oversight of how they spend their funds, Rue speculated.
“It’s not a ‘gotcha,’ the public should see it,” Rue said. “They should ask us questions and I should be able to explain.”
Rue’s bill has had one committee hearing and is awaiting a hearing before the Senate Finance Committee.
Conversely, a bill that would force one of Martinez’s state agencies to be more open with information won’t make it into law this year, either.
Also sponsored by Rue, the legislation — SB 88 — would mandate publicly disclosing the state agency, department or office involved in certain types of legal settlements, including sexual harassment, and the amount of money paid “for actual or compensatory damages and attorney fees.”
Martinez hasn’t given the green light for the legislation.
Larry Behrens, her communications director, did not offer a rationale other than to say in an email the legislation conflicted with current law. The purpose of many bills each legislative session is to tweak or replace provisions in current law, which was what Rue was thinking when he proposed the legislation.
Currently, settlements are not disclosed to the public except through an IPRA request, and that is only acknowledged six months after the incident.
“This is part and parcel of the whole debate we are having at the state and national level,” Rue said. “Inappropriate behavior and complaints being filed and sexual harassment and discrimination — all of these things are often settled, cloaked in secrecy.”
State legislatures across the nation are adopting policies with sexual harassment, including at the Roundhouse. A New York Times story about a complaint filed by prominent lobbyist Vanessa Alarid spurred changes to harassment policy at the legislature, but other lawmakers are pushing for more.
Rue has said he will introduce the bill next session.
“This is timely, it’s something the public is aware of and paying attention to,” Rue said. “Often times that’s what it takes to move legislation along.”
New Mexico scores an F on lobbyist disclosure
New Mexico doesn’t get high marks on lobbying disclosure, either. Lobbyists are often insiders who seek to influence public officials, from governors, state lawmakers to other policymakers. But when the Center for Public Integrity examined New Mexico’s rules in 2015, the state ranked 43rd in a national ranking — earning it an “F”.
Several state lawmakers have been trying for years to strengthen lobbying disclosure rules, with little success. And in 2018, that trend doesn’t look like it will change.
Steinborn has two bills that would close gaps in current law, which if passed would provide a much greater public insight into how much money lobbyists and their employers spend to influence legislation. One, SB 107 would require a report within one week of the session’s end listing specific legislation lobbied for or against by any lobbyist who is currently required to file an expenditure report to the Secretary of State’s Office.
Another, SB 173, would require registered lobbyist employers to report aggregate spending on lobbying. Steinborn refers to this as a “full disclosure” bill. That’s because the change would incorporate as lobbying expenses certain items that aren’t currently required to be disclosed. For instance, how much the employer pays the lobbyist in salary, or reimburses them for living expenses or lobbying expenses they incur. These amounts would not be itemized, just included in aggregate reports filed by the employer.
Steinborn explained why lobbyist disclosure is important to him during the one committee hearing for SB 107, where it was tabled.
“The public, I believe, has a right to know not just what we do but the other mechanics that go into the process up here,” he said in response to questioning by Sen. Jerry Ortiz y Pino, D-Albuquerque.
“The reality is, and we all know this, the bills and actions that happen in our government are not just what we see in front of us in this committee room,” he said. “It’s what may happen down on the street, it may be what happens in the hallway, or on the telephone. You, quite frankly, may not know the mechanics behind what was working to kill a bill, to pass a bill. But I believe it’s every bit in the public’s interest knowing that as what’s happens in front of you.”
Neither of the Steinborn bills stand a chance at this stage in the session of making it to the Senate floor for a vote.
Not all transparency bills are mired in legislative quicksand. Further along than all the other bills is SB 67 that would require reporting of 100 percent of lobbying expenditures, brought by Sen. Daniel Ivey-Soto, D-Albuquerque, and Rep. Jim Smith, R-Sandia Park. The bill cleared the Senate on Friday and now has two committees to clear before making it to the House floor for a vote.
If there’s one bill that’s not that controversial, it’s this one. It simply fixes a mistake the Legislature made in 2016 when it dropped a requirement that lobbyists report all of their expenditures. If state lawmakers pass it and the governor signs it, it would simply return lobbying disclosure to what it was before the Legislature weakened lobbyist disclosure rules in 2016.
In addition to having to push against resistance, lawmakers who advocate for more openness are always playing defense against attempts to introduce more secrecy.
Take, for example, HB 218, sponsored by Rep. Kelly Fajardo, R-Los Lunas, which would give state agencies more power to determine what records are “confidential” and therefore not subject to being posted to the state’s Sunshine Portal.
Established in 2010, the Sunshine portal was recently in the news for agencies failing to comply with mandates to report. Another bill sponsored by Rue — SB 83 — would appropriate money to the Office of the State Auditor to examine which agencies are not in compliance with the Sunshine Portal Transparency Act. That legislation has had one committee hearing and is awaiting a hearing before the Senate Finance Committee.
Meanwhile, as of Sunday, Fajardo’s bill hadn’t gone before its first committee.
“It’s not viable,” Fajardo said last week.
Steinborn and Rue — who aren’t up for re-election this year — know from experience the resistance they face to their transparency measures, but they sounded committed to keep hammering away.
Transparency “lets people know that their actions are being made public,” Steinborn said. “That itself incentivizes not doing the wrong thing and hopefully doing the right thing.”
Rue even sounded hopeful about the future.
“You introduce a bill and it goes nowhere,” the Albuquerque Republican said. “You bring it back, and bring it back and then all of a sudden; down the road everybody looks at it and it’s the greatest thing in the world.”
Marjorie Childress and Trip Jennings contributed to this report.
Danielle Prokop is a legislative reporting fellow for New Mexico In Depth. A senior at the University of New Mexico, Prokop is double majoring in journalism and international studies, and is vice president of the Society of Professional Journalists student chapter. Previously she was Lead Editor at UNM’s publishing lab, New Mexico News Port, where she also covered immigration and criminal justice issues, and an intern for Talk Media News in Washington D.C.