Can you think of a public official who spends public money and then gets to keep the spending choices secret?
That’s what New Mexico lawmakers do.
New Mexico’s lawmakers dished out $300 million dollars for infrastructure projects large and small during the 2019 legislative session. The stockpile they divvied up amounts to about a third of the $1 billion capital outlay budget signed by Gov. Michelle Lujan Grisham after the session ended. Awash in oil and gas money, lawmakers then gave themselves another $60 million to hand out for a wide variety of programs and projects, not just infrastructure.
While the public can see what projects were funded in the legislation, seeing which ones individual lawmakers earmarked money for is not public information. Nor can the public see which projects were funded by the governor.
In order to get that information, one must receive permission from individual lawmakers before legislative staff can make it public.
Over several months New Mexico In Depth did exactly that, eventually getting permission from 97, or 87%, of the Legislature’s 112 lawmakers to see how they each allocated public dollars under their control — a significant leap from the 25% or so of state lawmakers that gave permission for a similar reporting project in 2016. Lujan Grisham gave permission to see projects she funded as well as those decided by state agencies, each of which amount to about a third of the almost $1 billion infrastructure bill. (New Mexico In Depth was not able to get similar information on the legislation that meted out $60 million.)
The response appears to rebut an often heard assertion that many lawmakers are not in favor of making the information public.
Perhaps more importantly, New Mexico In Depth assembled for the first time a near complete picture of which projects were earmarked by which lawmakers and the governor in 2019.
Senate Bill 280 provided $933 million for infrastructure spending across the state (the governor vetoed about $8 million before signing the bill). Lawmakers decided, individually, how to spend $300 million of that, with senators dishing out $3.57 million each, and representatives each controlling $2.14 million. The governor doled out $248 million. And state agencies distributed the rest, $385 million.
Pork barrel secrecy
The secretive process lawmakers undertake to allocate money under their control has drawn much criticism in recent years. Governors, news outlets, advocates and quite a few lawmakers, several of whom have introduced bills year after year to make such information public, have denounced keeping secret the funding choices of individual lawmakers.
In the coming legislative session, state lawmakers will get another shot at changing the law to make the information public as a matter of course, said Sen. Sander Rue, R-Albuquerque. Rue has sponsored a public disclosure bill in the Senate since 2016, and Rep. Matthew McQueen, D-Galisteo, has sponsored similar legislation in the House.
“We allow individual legislators to make allocations; the public has a right to know who is making allocations to what,” said McQueen in an email.
A spokesperson for the governor told NMID Lujan Grisham supports capital outlay transparency, although it was unclear in late December if she would champion the disclosure measure during the short 2020 legislative budget session.
While efforts to pass the transparency legislation since 2016 have repeatedly floundered in the state Senate, most lawmakers from that chamber gave permission for legislative staff to release the information to New Mexico In Depth, without hesitation.
The positive response from legislators came after yet another effort to disclose lawmaker spending decisions died on the Senate floor late in the 2019 session. Several made a point of telling New Mexico In Depth how important it is to be transparent with public money.
Just 15 of the 112 volunteer lawmakers in the Legislature didn’t respond to a series of emails and phone calls asking for information, or outright refused.
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The 15 lawmakers did not respond to a series of emails over several months requesting they release their capital outlay funding decisions. Ten of the lawmakers either refused, opened at least one of the emails, or responded to an email asking that a different email be used for future correspondence. One responded that he had not received his list yet but did not respond to future emails. Two opened other New Mexico In Depth emails, confirming that their email addresses are active. Two did not open any of the emails sent to their official legislative email addresses. New Mexico In Depth will update this information should any of these lawmakers release their allocations.
It’s possible the 15 lawmakers did post their funding on their social media accounts or provided the information to constituents at community meetings or via emails, as some lawmakers who gave permission said they had already done.
Rural versus urban, or not
Arguments for keeping infrastructure spending decisions private often come from rural lawmakers who say they face different challenges than urban lawmakers.
In a nutshell, the arguments go, rural lawmakers have greater demands from dispersed constituents that span multiple counties than do urban lawmakers who generally only represent part of one county. Those greater demands mean lawmakers have to make hard choices between projects, and those choices could come back to haunt them during political campaign season if they were public. Another argument is that some lawmakers want to share credit equally with colleagues with whom they pooled resources to fund regional projects.
But both the capital outlay data gathered by New Mexico In Depth this year, and the process of gathering it, challenge such assertions:
- The 15 lawmakers who withheld or did not respond with their capital outlay are split almost evenly between multi-county and single-county districts. And the majority of them represent urban constituents.
- The majority of rural lawmakers in the Legislature gave permission without hesitation for their capital outlay choices to be made public.
- Lawmakers representing multi-county districts take widely varied approaches to distributing money. One funded 100 projects. A group of five in the northwest pooled their money for fewer than 10 projects.
Arguably, Republican lawmakers have been the most vocal about transparency, for and against.
Republican members of the House of Representatives, most of whom represent rural or semi-rural districts, voted unanimously as a caucus before the legislative session ended to release their capital outlay publicly.
In response to an email from New Mexico In Depth asking for the information, several Republican House members said they thought it was already public, and indicated that they would make sure it was released.
“A letter has already been provided to Legislative Council authorizing the release of this information,” wrote Rep. Kelly Fajardo, R-Los Lunas. “Please try again. … I believe we corrected the problem,” she followed up.
Within days, legislative staff sent every Republican House member’s list to New Mexico In Depth.
House Republican Minority Leader Rep. Jim Townsend, who represents a rural district in New Mexico’s southeast corner, said it’s not difficult to understand why he and his caucus members were unanimous in voting to release the information “by district and by legislator.”
“It’s taxpayer money,” Townsend said. “I would not be able to defend why it should not be public. My goodness, it’s taxpayer money. I don’t know how else to say it.”
The majority of Republican senators were responsive as well.
“I believe that my constituents are entitled to know how I have allocated the money that basically comes from the southeast part of New Mexico,” said Sen. Gay Kernan, R-Hobbs, in an email.
But the most vocal opponent of transparency is also a Republican. Sen. Cliff Pirtle of Roswell has opposed transparency legislation during committee hearings and in 2019 offered amendments to the transparency measure on the Senate floor that gutted the bill.
House Bill 262 required that a searchable list of capital outlay projects be published by the Legislature online, including the names of legislators or the governor who allocated a portion of each project, and the individual amounts. Pirtle’s first amendment to exclude how much each lawmaker allocated was adopted by the Senate. As his second amendment to strip a requirement to publicly disclose individual lawmakers’ names seemed likely to pass, Rue pulled the bill from consideration.
Pirtle told New Mexico In Depth that he didn’t favor releasing the information so that “it doesn’t become personal.” Lawmakers prefer to take credit equally for projects funded collectively, he said, referring to a common practice of lawmakers pooling their funds on projects. Pirtle declined to provide his capital outlay choices to New Mexico In Depth.
“These are taxpayer dollars, and we as legislators are stewards of those dollars,” said Rue, the GOP sponsor in the Senate of the transparency legislation. “We have no right to spend that money without the public being aware of how it’s allocated.”
Democratic lawmakers were also responsive to requests for their capital outlay decisions. Just three Democratic House members, all who represent urban districts, refused or didn’t respond to our requests, along with six Democratic senators.
Rep. Jim Trujillo, D-Santa Fe, said he sponsors just about all of the capital outlay requests presented to him by constituents, which ensures the projects are included in a list that all lawmakers can consider for funding. Being able to direct money to projects is one of the “only perks” of being a lawmaker, he said. But since he can ultimately fund just a small number, he doesn’t want to make his decisions public, he told New Mexico In Depth.
“They might say, why didn’t you pick me?” he said. “Some of them are even personal friends in the district. So it becomes difficult for me. … Politically it could go against you.”
McQueen said the potential for the information to be used against a lawmaker politically is like anything else lawmakers do.
“Using that logic you could make the argument that our votes on legislation should be kept secret lest we be subject to political attacks,” he said. “That would be as absurd as the current secrecy around capital outlay is.”
Trujillo said if he wasn’t retiring after the 2020 session, he might be persuaded, noting that things have changed since he first joined the Legislature in 2003.
“We’re more and more being transparent,” he said. “Now the philosophy is to be transparent.”