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Friday, April 17, 2009

Attacks on Free Speech Rights of Nonprofits (and Others) Continue in New Mexico

So do you think the dark forces behind certain political figures are scared the public is learning too much about their influence and the voting records of those they support with large campaign contributions? Do you think these string pullers are concerned because the public is pushing nonstop for ethics and campaign finance reform and other measures to increase transparency and accountability in government? 

Do you think politicos who want to keep things all cozy and secretive in the legislature and local government are worried because some long-time business-as-usual types got beaten in recent elections? Do you think the enactment of the campaign contributions cap and the failure of the SunCal TIDD bill are giving the big donor crowd the jitters?

I don't see how anyone could come to any other conclusion given the onslaught of scapegoating against public interest nonprofits and other clean government advocates that's gone on for many moons -- and continues today. What else can explain it?

First, we had the discombobulated sour grapes lawsuit filed against nonprofits and winning legislative candidates by the losers in last year's Dem primary election -- former State Rep. Dan Silva and former Senators James Taylor and Shannon Robinson. That was summarily thrown out by the judge. It was a mockery.

Then we had the non-opinion opinion of Attorney General Gary King that reportedly claimed that direct mail pieces about legislator voting records constituted electioneering -- or something -- based on King's oddball explanation that the material "walked like a duck and talked like a duck." The issue is still in limbo pending a court case and an official opinion issued by King has never been publicly released. He has never definitively explained his decision or the reasons he made it.

Next came a bunch of suspicious leaks from AG King and unnamed sources to the always suspect Monahan blog. The theme was bagging nonprofits and the assault included threats from the AG that fines and punishments were coming -- for something.

During the recently concluded Legislative Session, we were treated to a plethora of negative (and often ill-informed) comments from House and Senate leaders about nonprofits and their supposedly nasty allegiances and goals. These accompanied several disjointed attempts to enact vaguely written measures that sought to hamstring the free speech of nonprofits -- and to hell with the Constitution. Mercy. None of them passed, although they clearly were meant to chill the activities of the nonprofits. The only group publicly supporting the efforts was the Association of Commerce and Industry (ACI).

Anti-Nonprofit Efforts Move to Charter Review Task Force
And now, believe it or not, the crusade against truth telling has spread to the City of Albuquerque's . There, the forces of darkness are trying to push through a vague and almost certainly unconstitutional amendment that might well force pretty much anyone -- including nonprofits, bloggers or individuals acting on their own -- to file financial reports if they dare to say pretty much anything that might be construed as political for 120 days before any municipal election. That would mean that for four months before any city contest -- including the upcoming mayoral and city council elections -- nobody would be able to communicate to the public in any way about anything incumbents or candidates do, say or stand for, because it might -- you know -- influence the election in some way. I'm not kidding.

You can read about the proposed amendment to Article 13 of the City's Election Code in a recent story at the New Mexico Independent. Quote: 

Under the proposal, the organization — be it a corporation, limited liability corporation, nonprofit or “any person or combination of two or more persons acting jointly” — would trigger the requirement if they communicated such information via newspaper, TV, radio, Internet, on a billboard, or by direct mail or in door-to-door within 120 days of an election.

Sounds familiar, doesn't it?

The Ringleaders: Gara, Silva and Gallegos
Chuck Gara, a big-time sprawler, real estate developer (and friend of Mayor Marty Chavez and ACI) chosen by Councilor Sally Mayer to serve on the Task Force, sprang the amendment on the group at its April 2nd meeting. It would require each "offending" group or individual to register as a Measured Finance Committee, which is the City’s version of a political action committee (PAC). 

Also speaking on behalf of the muzzling attempt was Dan Silva -- yes that Dan Silva -- one of the losing legislators who mounted that crazy lawsuit written by Shannon Robinson. Democrat Dan, appointed to the Task Force by Mayor Marty, is now working as a registered lobbyist for none other than Harvey Yates. Yes, that Harvey Yates -- of the Jalapeno Corporation, a high rolling oil and gas company. Harvey just happens to be the current chair of the New Mexico GOP. They always say politics make strange bedfellows. 

The other member of the trio pushing the City Charter change is Steve Gallegos, another of the Mayor's appointees. Gallegos is a former BernCo Commissioner and City Councilor who just made the news again today trying unsuccessfully to convince the National Hispanic Cultural Center board not to support the removal of Manny Aragon's name from the Center's Torreon:

Former Bernalillo County Commissioner Steve Gallegos asked the board to remember the good things Aragon did for the community and to let people decide for themselves how he should be remembered.

"Manny Aragon really needs to be recognized for what he did. He did bad toward the end, but I have seen that man toil for the good of our communities, especially our poor communities," Gallegos said. "Don't rewrite history. His name's already on it. ... Would we become a better community by taking the name down? I would say no."

Gallegos, then a city councilor, asked Aragon for a job as Senate sergeant-at-arms in 1995, a post he held for three years. At the time, some criticized the hiring, saying it sent the wrong message about the influence of state legislators over local government officials.

So we know what side of the street Gallegos strolls on.

Complexities and Confusion
Fortunately the Task Force delayed action on the amendment until its April 23rd meeting, despite the push by Gara and the others to force a quick vote. I watched most of the discussion on the amendment on the City's cable channel and it was clear that more than a few Task Force members were confused about the complexities and legalities of the amendment. Such a vaguely worded change to the City Charter certainly raises a host of legal and constitutional issues that the Mayor's trio apparently wanted to sidestep.

Even the supporters of the amendment seemed more than a little confused about their proposal. Gallegos mentioned how he didn't like the "Swift Boat kind of stuff" that's gone on in national elections as one reason he supported the amendment. Well, there's a big difference between 527 groups and public interest nonprofits at the local level, but it's one big ball of wax in Steve's world. Gallegos claimed, however, that the intent was to do what's best for the community. In that vein, he spoke about how it might be worthwhile to challenge the nonprofits with the amendment even if it couldn't pass constitutional muster. He compared the amendment to past local government efforts like challenges to pornography laws that were ultimately overturned by the Supreme Court.

I don't know, I find it more than a little odd that certain parties on the Charter Review Task Force, which among other things is charged with defending First Amendment rights of citizens, would be finagling to get First Amendment rights curtailed by enacting onerous reporting requirements willy nilly. 

Who Decides Using Which Critera?
It's unclear who would decide whether an activity was verboten under the amendment and what criteria would be used to judge whether or not something was done to aid or oppose a candidate. Would a communication complaining about a council member's vote on some issue break the rules? If a journalist or blogger published an opinion piece on some issue that might be construed as for or against an incumbent with a view on that issue within the 120-day window, would they have to file as a Measure Finance Committee? It's not clear in the proposed language.

Chuck Gara claimed that it was all in the interpretation -- but nobody knows who would be in charge of making the interpretation. Gara said something at the meeting to the effect that it might be okay to send out info on a candidate's voting record IF it's framed correctly but that the same info might be deemed to have an influence if it were framed in a different way. Mighty muddy water, isn't it?

Before the meeting ended, the discussion strayed into the possibility of scrapping the City's public campaign funding program in its entirely. It shouldn't be surprising that Silva and Gara both spoke in support of that idea. Why? In essence, they claimed that business interests were getting a bad rap in the City and were no longer wielding enough clout in the election arena. You can't make this stuff up.

What Happens Next?
We'll see what happens at the next meeting of the Charter Review Task Force on April 23. Whatever they decide on, the Albuquerque City Council will have to vote to approve the Task Force recommendations. The approved amendments would then go before the voters. If the Task Force approves the nutty amendment seeking to undermine public interest nonprofits or approves the scrapping of our public campaign finance program, we'll let you know. And then we'll all have to join together to convince the City Council not to follow in the sleazy footsteps of those who want to recklessly limit the First Amendment rights of concerned citizens.

April 17, 2009 at 02:04 PM in 2009 Albuquerque City Council Races, 2009 Albuquerque Mayoral Race, Business, City of Albuquerque, Civil Liberties, Ethics & Campaign Reform, Government | Permalink


I am ready to answer the call. It will be a cold day someplace reportedly very hot before I'll stay silent on an infringement on 1st Amendment rights.

Posted by: VP | Apr 17, 2009 4:22:28 PM

And I'll be there on the other side VP, to make sure that bogus 501c3s (ya gotta learn to differentiate here Barb) play by the non-partisan rules they agreed to.

Posted by: Benson | Apr 17, 2009 6:00:37 PM

A fair number of incumbent politicians, especially legislators, don't like it when their voting records are exposed to close public examination. And since these politicians view themselves as being engaged in "perpetual campaigns" for re-election, they of course would love to see a perpetual black-out period on public discussions of those records. Short of getting some kind of perpetual gag rule on non-profit educational work, however, they'll settle for blacking-out as much of the calendar year as possible. Fortunately, the federal courts, by means of a number of decisions in recent years, have addressed this issue in great detail. These rulings have established clear and bright lines of "differentiation" -- and consistently put our First Amendment rights ahead of the self-serving desires of career politicians.

Perhaps you know something that Attorney General King doesn't. After all, it was in his haste to protect his political cronies in the legislature that King glibly announced the wonderfully fuzzy "looks like a duck" non-standard of "differentiating." Funny thing. Now almost a year has passed, and the AG's office has been unable to back up that hasty duck declaration with a formal legal opinion. Nothing. Nada. They haven't done so because they can't come up with one that would pass constitutional muster.

Yet despite all that, perhaps you and Chuck Gara and that insufferable blowhard Steve Gallegos (Manny Aragon's last defender) have figured out a way to contravene the U.S. Constitution -- some legal reasoning that has thus far eluded the AG's staff of crack attorneys. But I'm inclined to doubt it.

Posted by: luis | Apr 17, 2009 11:59:01 PM


Well there’s your first mistake, I think incumbent politicians should have their records closely examined. The problem is the groups being used to do so is a clear violation of the federal tax code. So I say feh, good sir.

And on to your second mistake, this isn’t about the First Amendment rights of 501c3’s in New Mexico. Although that claim, and this idea of mixing 501c3s, c4s and 527s into the same classification, is a nice red herring for everyone to get upset about. It’s about the fact that political groups have formed 501c3s to do political work, in a clear violation of the federal tax code. In order to be a 501c3, these groups voluntarily agreed not to engage in partisan politics. I’ve gone into chapter and verse on here before and still not been refuted, so I won’t go into it here and now.

If these guys and gals want to engage in politics, they can do so to their heart's content. No one’s stopping them. They just have to become 501c4s or 527s, and lose those sweet 501c3 bonuses. In other words, they have to politic according to the same rules as everyone else.

Posted by: Benson | Apr 18, 2009 7:11:29 AM

Right back at ya, Benson! You too can continue citing all your chapters and verses to your heart's content AND till you're blue in the face, I might add, but the problem is that your idiosyncratic readings of the tax code aren't the same as those rendered by the federal courts.

Like that other noted non-jurist, land developer Chuck Gara, you have appointed yourself the definer-in-chief of something you call "political work." With Gara, it's the equally vague and even more chilling, "However I choose to frame it" test, which appears to mean, for example, that even so much as a blog post criticizing SunCal and mentioning a City Councilor by name would trigger a requirement for the "offender" to release all financial records. Seriously! Read his amendment. So yes, this most definitely IS about defense of the First Amendment.

I also have to add the fact that in all of this you neglect to mention Federal Election Commission (FEC) rules, which must be read in conjunction with the IRS code in regard to this issue.

But hang there, fella. I'm starting to get a sneaking suspicion that you must have been the one giving legal advice to ex-legislators Shannon Robinson, James Taylor and Dan Silva in their law suit against the nonprofits -- the one that got tossed out of state court without so much as a hearing. So please, keep up the good work.

Posted by: luis | Apr 18, 2009 10:15:07 AM

I have definitely pulled up a chair, grabbed a giant bowl of jalapeno-flavored popcorn and am watching/reading with great interest. Largely uninformed interest, to be honest, but interest nonetheless.

I don't want to slow down the discussion here, but if either Benson, Luis or both could send me an email primer on all this stuff, I'd appreciate it.

Now back to your regularly scheduled U.S Tax Code/Constitution/lobbyists fight, already in progress...

Posted by: scot | Apr 18, 2009 10:43:40 AM

If the nonprofits were breaking the law as Benson asserts I'm sure the IRS would be on them like flies on turds. Since when is it up to the City Charter to punish organizations for vaguely defined infractions for which there are no clear criteria established? Spare me.

Posted by: Ed | Apr 18, 2009 12:18:54 PM

Yes, the only tolerable "free speech" would be the speech that is funded with endless amounts of "private" dollars.

Any dissenters and those who would call for ethics reform and public campaign financing are told to keep their mouths closed. No print, no electronic opinions or information coming from you either.

Nice place, America. Free if you are an astroturfer.

Posted by: bg | Apr 18, 2009 1:15:11 PM


No, I'm not giving legal advice to Robinson, et al, and to be honest suing the 501c3s in question was nothing more than sour grapes by a handful of people who lost. How they lost is what I'm concerned about.

I'm not the person who decides what's 501c3s can and can't do. That falls to a little group called the IRS.

"On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention."

In support of, or opposition to, a candidate. Ya following me here, camera guy?

As opposed to the example of anyone writing a simple blog post, which is protected by the first amendment. So anyone who lumps in an individual person with a 501c3, regardless of whether it's you or Gara, is in the wrong, since they are two separate entities.

Maybe you should read the guest post I have up today. A non-profit expert and friend of mine takes a look at this very case.


To answer your question, the Secretary of State and the AG's office did take action by requiring those 501c3s to reregister at 501c4s or 527s. Then they sued the state to keep their tax-exempt status. And God knows where the lawsuit is now. It's not a matter of getting someone to say "Book 'em Dano."

Just because these groups do good works for politics and the community (Ha! You didn't expect that, did ya, but who else would have taken on Intel in the 80s and 90s) doesn't mean we can give them a pass on how they do them. It's the difference between being loyal to a principle, or loyal to a person.

bg, you raise an interesting point. And I'll ask it here (not that I expect a response, since it's so easy to engage in personal attacks). What's to stop SunCal, or Intel, from creating their own 501c3s and attacking politicians and groups they don't like? (and the Repubs out here are already talking of creating their own 501c3s)

And what about the churches? Is it OK for right wing churches to preach from the pulpit? That's what they are fighting for in the South. It's what Barb raised on the New Mexico Independent, with Archbishop Sheehan and his magical mind-controlling stare.

And with that, I bid y'all adieu.

Posted by: Benson | Apr 18, 2009 2:42:56 PM

OK, so why would SunCal or Intel or any other big business want/need to jump through all the hoops to set up and operate a 501c(3) when the Supremes have already ruled that they can spend as much as they want in the "free market" with no strings attached because whatever they do with their large amounts of cash to support/not support/malign or not some group or individual is what they already do, either as a business, as a CEO of the business or as a group of self-interested businesses or individuals?

What good would it do them? More work, more expense. Just keep the status quo, which has been working quite well for them, until recently.

Doncha think?

Posted by: bg | Apr 18, 2009 3:40:13 PM

Don't tell me the paid PR shill who's buddy buddy with Mayor Marty and absolutely positively loves the sleazy SunCal deal is back again using his same tired and inaccurate arguments.

I will keep it short. Mr. thinks he knows it all omits the court decisions and thus the legal rules that actually govern how nonprofits must operate. He keeps acting like the IRS code is the final word but the details that say what nonprofits can and cannot do and when are not contained in the IRS code. They were created via the courts to provide a clear framework for nonprofits to follow. The nonprofits followed that framework and its rules to the letter. To claim anything else is merely hot air.

Posted by: Get Real | Apr 18, 2009 11:52:51 PM

It's silly to say nonprofits cannot be "political" unless the word is defined clearly. Almost anything can be judged to be political in some sense. That's why the courts ruled specifically on what "political" is in terms of activities in the public realm by nonprofits.

The court rulings address a blackout period for certain communications right before elections and they prohibit nonprofits from specifically advocating for or against the ELECTION of a candidate by name. The rules also say nonprofits can expend only a certain percentage of their time and money on certain activities. That's it. The rules DO NOT prohibit nonprofits from distributing educational materials about officeholders, their voting records and who gives them campaign cash except during the blackout time.

In other words, the IRS rules coupled with the legal rulings clearly protect nonprofits doing what targeted nonprofits have done here in New Mexico.

The political forces working for the often filthy status quo in the state, many of whom are connected with the old Manny Aragon et al. patron system of politics along with monied developers and certain corporate "business" interests, know that what the targeted nonprofits are doing is LEGAL. But they don't like it because more and more ordinary people are saying enough is enough, and the old guard is being defeated one by one and also losing influence.

The more ordinary citizens know about how their elected officials are voting and where they are getting their money, the more likely it is that crooked or compromised officeholders will lose their clout or their jobs. Entrenched political interests like it when the public stays uninformed and inattentive.

So how do you stop the information from flowing? You get a compromised Attorney General King to say he knows "electioneering" when he sees it, but refuse to reveal his official opinion and the legal framework upon which it's based to the public. Instead, we have King giving his informal opinion via Joe Monahan's blog, which is supported by many of those losing clout in the state.

You get a go-along Secretary of State Herrera to issue a silly demand for New Mexico Youth Organized to file as a PAC based on the secret legal opinion, even though both the AG and SOS know their actions will undoubtedly be struck down by the courts eventually. In the meantime, though, you force the targeted nonprofits to spend money and time on attorneys and legal responses to the crazy and undocumented opinion and demand. This has a chilling effect, which is the goal of the entrenched interests.

Next you go about an organized attempt to baffle the people with bullshit from all directions by constantly hitting at the targeted nonprofits using, again, Monahan's creepy leaks and innuendo, Mark Brawley's droning and distorted commentary, the biased and slanted Albuquerque Journal and Mayor Chavez's cronies on the Charter Review Task Force to act like the poor, poor dirty government kingpins in the state are getting picked on in some illegal way.

The irony is that this cabal of business as usual whiners really believes that a few direct mail pieces that publicized certain elected officials' voting records and campaign donors are what caused the likes of James Taylor, Shannon Robinson and Dan Silva to lose their elections. Any sane person would realize these three lost because they hadn't served or communicated with constituents for years and years. They lost because they were caught doing things like using public dollars for a favored soccer team. They were defeated because their challengers and hundreds of volunteers went door to door, block by block, in their districts, listened to people's needs and proposed good solutions. Why vote again for someone who doesn't care about your needs when you now have someone running who will?

The fact is that entrenched politicians can't quite bring themselves to believe that they're losing because they do a shitty job in office and on the campaign trail. They prefer to see some evil plot.

The funny thing is that even if the ethically compromised individuals who are going after the targeted nonprofits would somehow manage to succeed in stifling their targets, it won't mean that business as usual will be allowed to continue. The best way to make change is via the ballot box and it's there and in the valiant efforts of volunteers that this battle against crooked politicians and their wealthy backers will be won.

Posted by: Legal Bystander | Apr 19, 2009 12:06:36 PM

The goons attacking the nonprofits are so transparent in their fears that people might see behind the masks. Keep up the good work to expose them. They hate it.

Posted by: Josie | Apr 19, 2009 1:21:38 PM

I am surprised to read that (as near as I can tell) the Center for Civic Policy, which helped fund the Wellstone Action Group training here in Albuquerque last year, is registered as a 501c3. Is this true?

We have a group in Otero county, not very active, which is registered as a 501c3 (and it was a lot of work to get that registration, plus a $300 fee). We hold meetings and have speakers come to talk to us about water issues. Any candidate who shows up at our meeting during the election season is allowed to speak to the members.

Our goal is to make information about water issues available, not to advocate for or against any politician.

Posted by: Ellen Wedum | Apr 20, 2009 8:26:18 AM

Ellen, you need to read more carefully. The nonprofits being criticized communicated about legislator voting records on certain issues and who donated to their campaigns-nothing more.

This post and the comments that support it do a good job of describing the harassment that is being done to certain forces for clean government in NM. Why is it being done? Because the forces for dirty government are starting to lose.

Posted by: Old Dem | Apr 20, 2009 9:56:55 AM


Posted by: bg | Apr 20, 2009 7:46:10 PM

"The nonprofits being criticized communicated about legislator voting records on certain issues and who donated to their campaigns-nothing more."

Hmmm... it's the 'nothing more' that bothers me. Did they compare and contrast in the noncommital style of Project VoteSmart?

Posted by: Ellen Wedum | Apr 21, 2009 3:14:24 AM

Ellen you are misinformed about what the rules require and permit. Better to leave the discussion to people who know what they are talking about.

Posted by: Old Dem | Apr 21, 2009 8:33:35 AM


You seem to suggest that talking about voting records and campaign contributions is unconstitutional.

Looking at the mailers, I don't see any compare/contrast with other elected officials. But even that--are you saying its unconstitutional to do so?

Perhaps you could elaborate.

Posted by: First Amendment Advocate | Apr 21, 2009 9:41:21 AM