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Sunday, August 10, 2008

Nonprofits Respond to AG King's Odd Behavior, Threaten "Unnnecessary" Litigation

I'll try to bring you up to date on the story of the manufactured outrage over direct mail pieces distributed by nonprofits to call attention to the voting records of certain long-time incumbents in the New Mexico State Legislature. And the legal wrangling going on as the story evolves.

Agking_2The Letter from AG King's Office
Besides a recent lawsuit, we have a situation where Attorney General Gary King's office issued a letter in May to the Secretary of State advising that, in essence, New Mexico Youth Organized's status should be changed from a nonprofit to a PAC. The letter was sent the day after State Sen. Shannon Robinson reportedly complained to the AG's office about NMYO. The day after that, the office of the SOS reportedly got a call from the AG's office advising them to ignore their letter about NMYO. That's where action by the AG's office stopped -- until a recent story in the New Mexico Independent apparently prompted them to issue a press release on Friday standing behind the original letter from the AG's office. More on that below.

On What Criteria and Facts Did King Base His Opinion?
By any standard legal measure, it clearly appears the nonprofits -- including New Mexico Youth Organized -- followed the law in their activities. Their goal was to educate the community about who gave money to legislators and how legislators voted, as is their right and even their duty given the goals of the organizations. It certainly looks like they followed the rules and honored the traditional communication timelines. Moreover, they've said that their top-notch legal advisors thoroughly vetted their every action.

As far as I know, none of that has been challenged on specific, documented legal grounds by AG Gary King, either in his office's original opinion letter to the Secretary of State about the matter or in the Friday press release.

Putting the Cart Before the Horse
Oddly, although the AG's office issued an advisory letter to the Secretary of State in May and backed that letter in their Friday press release, they have also said that the matter is still under advisement and that they are performing "due diligence" to study the matter. Why would the AG's office issue an opinion letter and then dig into the case AFTERWARDS? I guess political pressure does strange things to some people. Big time muckety-muck.

AlligatorduckDuck Soup
King issued what I think is an incredibly embarrassing press release Friday in lieu of any legal communication with the parties and stated he believes the legal status of New Mexico Youth Organized should be changed to a PAC because, to quote him:

“There’s an old saying that if it walks like a duck and quacks like a duck, then it’s probably a duck. And I think we know a duck when we see one.”

Quite the legal language for the people's top lawyer, isn't it? AG King offered no legal citations or factual documentation in the release to back up his view that the status of New Mexico Youth Organized should be changed. By his own account, King just knows an alleged offense when he sees it. He doesn't define how NMYO crossed the legal line, but apparently he knows in his heart they did. King's statement boggles my mind -- so I can only imagine what it does to minds trained in the law. And since when does the AG's office issue opinions in the media instead of using standard legal channels?

Two Nonprofits Rebut King
The Center for Civic Policy and New Mexico Youth Organized (NMYO), two of the local nonprofits being targeted, issued statements yesterday rebutting King and his advice to the Secretary of State:

The United States Supreme Court has made it abundantly clear that election officials are only permitted to regulate public statements that explicitly address elections.  They are not permitted to regulate public statements that relate to officeholders' conduct, even though those officeholders may be running for re-election.  This is fundamental to the First Amendment's guarantee of freedom of speech.  The Attorney General's statement that he recognizes what can be regulated on the basis of whether it 'walks like a duck' is an indication that he doesn't understand the law in this area, and he is inviting entirely unnecessary litigation against the State of New Mexico." [emphasis mine]

--John Boyd, Counsel for Center for Civic Policy and New Mexico Youth Organized, Freedman Boyd Daniels Hollander Goldberg and Cline

--Sara Berger, Counsel for Center for Civic Policy and New Mexico Youth Organized

"We are disappointed by Attorney General King's uncharacteristically glib assessment of a serious matter.  At stake is the ability of nonprofits throughout New Mexico to hold elected officials accountable for their actions and to advocate for issues that are critical to their missions.  Further, we are disappointed that the Attorney General is issuing a verdict through the media prior to his office completing its research on this matter."

-- Eli Il Yong Lee, Executive Director, Center for Civic Policy

PowercorruptsWhy Is All This Happening?
Ever since it became evident that three progressive reform candidates were making headway against entrenched, business-as-usual incumbents in the recent Democratic primary, the minions and mouthpieces of the lobbyists and big donors have been bent on discrediting the nonprofits and the three eventual winning candidates. They've planted rumors and statements on the blogs. They've complained about cheating and nefarious plots. The losing candidates filed a bogus lawsuit. And now this.

Why all the ruckus? Because genuine ethics and campaign finance reform legislation is coming closer and closer to passing. Because genuine health care reform is coming closer and closer to passing. Because domestic partnership legislation is coming closer and closer to passing. Et cetera.

The complainers -- named and unnamed -- and the primary losers have been reliable opponents of change and reform, within the legislature and in its hallways. They've functioned as stoppers, protecting the power blocs that oppose anyone rocking the corporate-steered boat. And now the people are learning the truth and voting accordingly. Damn right the status quo is feeling vulnerable. They're on the run as more and more election challengers and issue-based activists feel strong enough to go up against them. That's a good thing.

But what isn't good is that the erratic, opaque and secretive behavior of Attorney General Gary King related to this matter tends to suggest that he's taking his cues from political bigwigs rather than from the dictates of the law. I'm not saying it IS that way, but it sure LOOKS that way, doesn't it? It looks like certain parties are feeling cornered so they're trying to put the thumb on those who have a tendency to give in easily for one reason or another. I hope that's not true, but there it is. As they say, timing is everything.

Some previous posts on these and related issues:

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August 10, 2008 at 03:54 PM in 2008 NM State Legislature Races, Ethics & Campaign Reform, Government, Local Politics, Progressivism | Permalink


Well, if it LOOKS like erratic, opaque and secretive behavior, and it TALKS like erratic, opaque and secretive behavior, maybe it IS. Or maybe it is an alligator.

Hilarious, BW.

Posted by: bg | Aug 11, 2008 7:22:31 AM

Michael Sanchez for Guv in 2010 baby! Yeah!

Posted by: Progressive Feminist | Aug 11, 2008 8:36:25 AM

Progressive Feminist-why are you writing that in this thread? It has nothing to do with the topic and should be erased. A real progressive feminist would never support Michael Sanchez for governor.

Posted by: I Vote | Aug 11, 2008 9:02:39 AM

I am very sad that Gary King is acting this way and caving to the political pressure. If he goes after nonprofits here as is being rumored, he will be the laughing stock of the state and the nation. He can kiss his political future good bye.

Posted by: Roadrunner | Aug 11, 2008 9:47:56 AM

I'm a life long Democrat and I can't believe King is working for the forces of dirt. I remember when he used to be on the side of the people. That letter from his office in May is crazy and has no facts. What it does mention is an old website of an organization that bit the dust long ago. Wake up Mr. King.

Posted by: M. H. | Aug 11, 2008 10:20:19 AM

The smell of change for me as a voter of NM is ripe with fresh flowers, fresh fruit, the smell of all things new. I am sure for the three losing encumbants it stinks of duck droppings.
The AG has lost much respect due to this matter. How could his office make the determination it was wrong for the non-profit and instruct the SOS to change their status within hours of getting the letter or call from Robinson. And now the AG office has the nerve to say it is under review. My goodness talk about one extreme to another....it has taken them almost two months to review this and the best AG King can state is this stupid duck statement. Is this how King practices law?
Pitiful for New Mexico. We deserve better.

Posted by: the smell of change | Aug 11, 2008 2:12:43 PM

The DFNM blog has really been tracking this election and this false claim. Good going for staying with this unfolding story and helping to elect three new democrats who will work for the people .

Posted by: NMSD17 | Aug 11, 2008 2:20:14 PM

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