The Legislature concluded today, which also happens to be the final day of Sunshine Week, so it’s only fitting that we review a couple of transparency measures taken up by the Legislature.
In short: it’s a mixed bag. One prominent measure five years in the making passed, and if the governor signs the bill, lawmakers will no longer be able to allocate public works dollars in secret. But another measure that sought to fix a loophole in campaign finance disclosure laws was dead in the water.
Lawmakers shine light on themselves
Once a contentious measure among lawmakers, a bill that requires a list of how lawmakers allocate public infrastructure dollars be published on the legislative website sailed through the 2021 session. It’s momentous, considering the long history of secrecy surrounding how lawmakers decide what projects to fund. The public list will only pertain to projects this year and in the future.
The Senate passed a measure Wednesday that would enable New Mexicans for the first time to see how each lawmaker spends public infrastructure money under their control.
Should House members agree with Senate amendments, and Gov. Michelle Lujan Grisham sign it into law, the measure would require legislative staff to automatically publish a list 30 days after the session ends that details how individual lawmakers spend millions of dollars in most years — a far cry from the secrecy that has surrounded such decision making at the Roundhouse for as long as people can remember.
House Bill 55, sponsored by Rep. Matthew McQueen, D-Galisteo, and a bipartisan group of lawmakers, sailed through the Senate after some debate, a much different outcome than in previous years.
In 2015, New Mexico In Depth discovered that such information was a secret after filing a public information request for a list of individual lawmaker’s infrastructure spending allocations and finding out that information wasn’t subject to public scrutiny. That’s because of a long established statute that makes confidential any communication between individual lawmakers and legislative staff. That statute still stands, but now, if the measure becomes law, details about lawmakers’ individual spending choices will be exempt from the rule.
During the February House floor debate on the bill, McQueen said it’s important to make the information readily available to everyone who’s interested. Sen. Jeff Steinborn, D-Las Cruces, said during Wednesday floor debate in the Senate that making the allocations public was long overdue and “fundamentally the right thing to do.” He listed three reasons: it’s public money that the public has the right to see; making it public prevents fraud; and transparency will result in money better spent.
Since 2016 when the first bills were introduced by McQueen and former senator Sander Rue, R-Albuquerque, the transparency measure has been hotly debated, with opposition largely hinging on the political costs to lawmakers if their spending decisions are known to the public. This concern has been voiced largely by rural lawmakers who represent multiple counties, who say they must juggle many more funding requests from their constituents than they can possibly fill.
But a 2019 investigation by New Mexico In Depth found the issue wasn’t a cut-and-dried example of a so-called rural/urban divide.
That year, we asked every lawmaker to give legislative staff permission to share their capital outlay allocations with the public.
The Senate approved a bill Wednesday that would close a “loophole” in the state’s transparency laws, and would require legislators running for federal office to disclose their contributions every 10 days during the legislative session. The loophole allows nonprofit organizations to avoid disclosing donors behind political spending if those giving the money requested in writing that their donations not be spent for political purposes, even if the group decides to use the money for politics anyway. The amended SB 387 ultimately passed the Senate on a 35-3 vote after clearing the Senate Judiciary Committee last Friday, where State Ethics Commission Executive Director Jeremy Farris spoke in favor of the bill. The bill now heads to the House for consideration. “I think it closes the gap,” said Farris, noting that Wirth’s bill was similar to recommendations the commission made in its 2020 annual report.
When New Mexicans head to the polls during a general election, they usually have just two viable options: a Democrat or a Republican. There may be a Libertarian or unaffiliated candidate on the ballot, as well. Sometimes there may even be just one candidate on the ballot, as was the case in more than a quarter of the 112 state legislative races in the 2020 general election, all of whom represented a major political party.
Meanwhile, in the last 30 years, the number of independent voters has more than quadrupled, registering at just under 5% in 1990 and almost 22% in 2021. In three of the state’s counties–– Santa Fe, Taos, and McKinley–– independent voters actually outnumber Republican voters. “I think the tipping point is that we’re seeing especially newly registered voters– and even some voters who are longtime active voters– have become jaded by the two party system,” said Heather Ferguson, executive director of Common Cause NM.
Legislators are barred from soliciting campaign contributions while the Roundhouse is in session– unless they happen to be running for Congress.
During the state’s prohibited fundraising period, lasting from January 1st to the end of the session, lawmakers may not solicit any campaign contributions and lobbyists may not donate to any state campaigns. But federal campaigns aren’t subject to state law. This means four Democratic state lawmakers running for an open congressional seat may fundraise at the same time they’re conducting state business during the 2021 legislative session. New Mexicans won’t officially know who contributed to them until after the session.
“The original intent of having a prohibited period for state lawmakers was so that the public wouldn’t have the perception that lobbyists were literally giving our elected officials money for their state campaigns while they’re in the middle of a legislative session,” said Heather Ferguson, executive director of Common Cause New Mexico. On Wednesday, the Senate Rules Committee unanimously endorsed a bill sponsored by Sen. Jacob Candelaria, D-Albuquerque, that would require state elected officials running for federal office to disclose their donors every ten days during the prohibited period.
Sen. Majority Leader Peter Wirth, D-Santa Fe, is seeking to tighten a so-called “loophole” in New Mexico’s campaign finance laws that allowed a dark money group to hide its donors during the 2020 election. “I do think we need to continue our work to be sure that voters know who’s donating to independent expenditure committees,” Wirth said during a hearing today before the Senate Rules Committee. “This bill is a baby step.”
In 2020, the nonprofit Committee to Protect New Mexico Consumers (CPNMC) argued it didn’t have to disclose who funded $264,000 spent on mailers sent to voters, taking advantage of an exception in the campaign reporting act that allows a group to keep donors secret when they request in writing that their contributions not be used for political spending.
Underlined language that SB 387 would add to the Campaign Reporting Act. Wirth’s Senate Bill 387 would require outside spenders to separate those kinds of contributions from money given for political spending, keeping them in a segregated bank account in order to be legally shielded from disclosure, leaving less room for groups to use that exemption to their advantage. “It’s an attempt to just figure out where the dollars are coming from,” Wirth said about the fix to outside spending transparency laws that Wirth championed for more than a decade and that became law in 2019
Secretary of State Maggie Toulouse Oliver spoke briefly in support of the bill, praising Sen. Wirth’s prior work on bringing more transparency to political spending.
New Mexico Public Regulation Commissioner (PRC) Joseph Maestas on Wednesday demanded that Public Service Company of New Mexico disclose whether it contributed to a dark money group that supported a November ballot measure seeking to overhaul the agency charged with regulating the utility. “I’m just simply calling on PNM to come clean, you know, disclose whether or not you donated to this dark money PAC [sic],” Maestas said during a PRC hearing, referencing the nonprofit group Committee to Protect New Mexico Consumers. PNM may not be under legal obligation to disclose its involvement, Maestas said, but it had a “moral obligation” to do so. “I agree, we’d love to hear,” Stephen Fischmann, the PRC commission chairman, said. “I think there’s a strong possibility that it’s the case that they did donate to it.”
New Mexico In Depth received no response Wednesday from PNM spokesman Ray Sandoval despite multiple requests for comment, continuing weeks of silence on whether or not the utility contributed to the nonprofit.
Exxon Mobil Corporation contributed to a dark-money group that supported a successful November referendum reforming the state’s Public Regulation Commission (PRC), according to a campaign finance report filed by one of its lobbyists. One of the largest oil and gas producers in New Mexico, the multinational conglomerate gave at least $10,000 to the “Committee to Protect New Mexico Consumers,” a nonprofit that spent a quarter of a million dollars touting the merits of a constitutional amendment, which eventually passed handily. The contribution can be found in an Oct. 7 report filed by Exxon Mobil lobbyist Deanna Archuleta. The Committee to Protect New Mexico Consumers refused to disclose its donors when the State Ethics Commission (SEC) demanded it do so despite new campaign disclosure laws requiring groups like it to say where the money they spend on political campaigns comes from.
Lobbying at the Roundhouse is a little bit different from other states. Put a crop of unpaid “citizen legislators” and well-paid professional lobbyists in a building together, and a certain culture develops in which lobbyists become key sources of information for lawmakers. “When I have colleagues that come in here from other states, or from the national level, they’re amazed at the degree of access that folks have here, and it’s more of an informal kind of a situation than it is at a lot of other venues,” said Dan Weaks, a professional lobbyist. In contrast to unpaid, understaffed legislators, lobbyists—many of whom have significant monetary resources at their disposal—can play an outsized role in the policymaking process, said Sen. Jeff Steinborn, D-Las Cruces, who has witnessed employers hire as many as 10 lobbyists for a single issue.
“They had a lobbyist posted at every elevator.”
Another senator didn’t mince words. The system we have “empowers lobbyists over the people’s elected representatives, and that’s a pretty dysfunctional system, in my view,” said Sen. Jacob Candelaria, D-Albuquerque.
Legislators will make another push this year to make public how individual lawmakers divvy up capital outlay money.
New Mexico In Depth discovered back in 2015 that those decisions were exempt from the Inspection of Public Records Act, after submitting a request for a list detailing how lawmakers individually allocated infrastructure money that year. We wrote about what we’d found, and several lawmakers promptly introduced bills in 2016 to make information available to the public about how individual legislators steward capital outlay dollars. Here’s a recap of the issue:
Each year, the state Legislature passes a capital outlay budget that sends millions of dollars out to New Mexico communities to pay for infrastructure projects. To figure out how to spend that money, lawmakers divide the money three ways. The governor controls a third, state agencies control a third, and lawmakers control a third.
How do lawmakers decide how to spend their portion?