Disclosure Rulemaking Violates New Mexico Constitution, CCP Says

Secretary of State Maggie Toulouse Oliver
“is not empowered to do what the Legislature and Governor chose not to do”

Alexandria, VA – Can an administrative agency use the regulatory process to implement proposals that were rejected through the legislative process? Comments filed Tuesday by the Center for Competitive Politics (CCP) explain how the New Mexico Constitution forbids this violation of separation of powers.

Secretary of State Maggie Toulouse Oliver has proposed vague and onerous reporting requirements for groups that mention candidates. These proposals first appeared in S.B. 96, a bill that Governor Susana Martinez vetoed in April. Repackaging failed legislation as a regulatory proposal wrongly usurps the Legislature’s role in the lawmaking process.

“The Proposed Rule attempts to legislate rather than implement existing law, as evidenced by the Proposed Rule’s cut-and-paste of the legislature’s failed bill,” wrote CCP Attorney Tyler Martinez. “While the Secretary has some authority to write interpretive rules, the wholesale adoption of new disclosure requirements – particularly when they may be suspect under the First Amendment to the United States Constitution – is simply beyond the scope of the Secretary’s authority.”

The New Mexico Constitution says that once a bill has been vetoed by the Governor, “such bill shall not become a law unless thereafter approved by two-thirds” of both chambers of the Legislature. Administrative agencies like the Secretary of State’s office cannot step in to fill the Legislature’s shoes.

“The Secretary is not empowered to do what the Legislature and Governor chose not to do in law,” the comments explain.

Like S.B. 96, the proposed regulation threatens the First Amendment speech and association rights of groups that speak about candidates in the state. CCP previously wrote to Governor Martinez about the constitutional and practical problems with S.B. 96. CCP Chairman Bradley A. Smith also wrote an op-ed in the Albuquerque Journal highlighting the specific dangers the bill posed for charitable organizations.

Governor Martinez echoed Smith’s concerns in her veto message. She wrote, “While I support efforts to make our political process more transparent, the broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances.”

CCP Staff Attorney Tyler Martinez is scheduled to testify during a hearing on the proposed regulation Thursday morning in Santa Fe.

The Center for Competitive Politics (CCP) is America’s largest nonprofit working solely to promote and defend First Amendment rights to free political speech, press, assembly, and petition. The comments can be read here.