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To:Attorney General Gary King
State of New Mexico
Drawer 1508
Santa Fe, NM 87501
Dear General,
Re: Opinion No. 07-01
This letter concerns the opinion issued in response to the request of state senator Leonard Lee Rawson upon whether the Governor is prohibited fundraising during the
prohibited period. Defined under Section 1-19-34.1 NMSA, the "prohibited period" begins January 1 prior to any session of the Legislature and concludes after the 20th day after adjournment.
A simple reading of the relevant statute provides "It is unlawful during the prohibited period for the governor or any agent on his behalf to knowingly solicit a contribution for a political purpose. The opinion rendered the question in a misdirection as to whether that statute applies "to candidates for federal office."
The Governor of New Mexico is the supreme executive power of the state and sees the laws are faithfully exercised. One might provide that as governor the person and body of the individual citizen who has taken a most solemn oath to faithfully exercise the office of the Governor is of the state, first and foremost.
No doubt, the state law did not anticipate Governor Richardson "establishing an exploratory committee to seek the highest federal office, the Presidency." Or even a legislator seeking federal office in the United States Congress, as was the case four yeas ago with Senator Romero. But the prohibition is simple and provides no exception. While the office holder may announce and actively pursue a Federal candidacy, with compliance to Federal election laws, the prohibition is concurrent with Federal law. As concurrent, the state law is not preempted by Federal law as your opinion provides. Federal law applies to "candidacy for office" while state law applies to a constitutional office. Inherently there is a conflict of interest or the appearance of a conflict of interest if the candidacy of the state officeholder seeks contributions and funds during the prohibited period.
The state statutes of course do not prohibit "campaigning" such as staffing, speaking,
soliciting delegates for endorsement , traveling or functioning toward a future office. What the statute does is prohibits "during the legislative session and ( in the case of the Governor for 20 days after the adjournment of the legislative session) the solicitation of a contribution for a political purpose.
Perhaps some would point that to pursue the Presidency without solicitation of contributions for 80 days is unrealistic in this day and age where campaigns are not extractible from the financing. But the totality of circumstances must be accounted for.
Federal laws provide for certain requirements for "financing under the federal check off for Presidential campaigns-- including the qualification of matching funds and often exceeding contributions raised under that scheme of laws. Campaigns obviously now continue in longer and longer periods of time than the labor day to election day period
Generally associated with Presidential candidacies.
But the statute is clear. The Governor cannot solicit for a political purpose.
Governor Richardson can without soliciting contributions appear on national television, travel to other states, maintain telephonic communications and the like all without soliciting or having an agent seek contributions. Those acts excepting contributions are not prohibited by law. Nor is expending monies collected for the purpose of a candidacy outside the defined time period. And Governor Richardson can carry on the exploratory activities with a 'highly publicized self imposed " rule against campaign contributions" without violating the statute.
The opinion cited a letter to Mr. David Duhigg of October 22, 2003 related to the Congressional fundraising of Richard Romero in the First district. As quoted in the opinion, the Lamb letter provided "The Secretary of State's office concluded : Senator Romero's congressional fundraising would appear exempt from section 1-19-34-1". While there was a Special Session in October, 2003 and a prohibition regarding contributions existed under the statute, several "options" could have undertaken by the Senator to comport with the statute-- and the related statute to the potential unlawful political contributions which could be made during the special session ( Lobbyist Regulation act
NMSA 2-11-8.1): for purposes of this section, prohibited period is ...in the case of a special session, after the proclamation has been issued, and ending on (1) the day the session for any statewide elected official or candidate for statewide office, except the
Governor; and (b) a legislator or any candidate for the legislature; and (2) the twentieth day following the adjournment of the regular or special session for the governor or candidate for governor. Options , if one is to seek a candidacy is to (a) resign the office,
Or (b) take an "excused absence" from the session or (c ) do not take funds during the prohibited period. Just as previously stated, Federal law does preempt the state statute, but rests side by side and concurrently. Any other interpretation effectively promotes the
reduction of the full faith of the solemn obligation to constitutional office. It further diminishes the public faith and confidences in the legislative and governing process.
At best, the Lamb letter is a tentative decision upon emerging acts during that time but without any finality of law. The Lamb letter should have been explicit toward the higher standard which is the obligation of public service-- and not proved an excuse for less than the higher standard of public service. It's use in the current opinion furthers the reduced standard.
Additionally, the opinion and the letter cited an 11th Court of Appeals case., Teper v Miller, 82 F3rd 989. (1996)The Teper case provided a similar situation to the Romero case ( a legislator actively seeking federal office and during the period of the legislative session was active in soliciting funds and contributions for the federal office). While the Teper case can be used as a guideline, just as cases of Wisconsin or Maryland, Georgia is not in the Tenth Circuit as is New Mexico. And the controlling limitation upon "the governor of New Mexico" which is what New Mexico law pertains.
That is not to mention that the restriction of Georgia law subsequent to the Teper case has been amended through 2006.The Georgia General Assembly, the formal title of the legislature, was formed in 1777 and is older than the United States Congress. At the time of its origin, the legislature consisted of a single house, but in 1789 it became a bicameral body, consisting of a House of Representatives and a Senate. The House of Representatives and Senate operate with similar powers, except that appropriation bills must originate in the House, while confirmation of the Governor's appointments rests with the Senate. The concurrence of both bodies is necessary before any bill may become a law. The House of Representatives has 180 members and the Senate has 56. Two-year terms of office apply to both houses, and the entire membership of each body is elected at the same time. The sessions begin on the 2nd Monday in January and last for 40 days--though they can be adjourned prior to 40 days. ( Clerk of the Georgia Legislature).
Like New Mexico, the period of prohibition is limited in days. And the intent is to preserve the integrity of the state and its constitutional officeholders. The "right" of office holding is an honor and privilege conferred upon a citizen for a given term and requires obligations first and foremost to the State.
The claim of citation of Federal Election Commission supercede the statutory scheme of New Mexico must be rejected. In part for the reason cited as interests of the State. No person can serve two masters. The restrictions placed by New Mexico are not upon "candidates for Federal office" but upon the officeholders of New Mexico. The laws are intended upon the integrity of the officeholder and toward the uncompromised vitality of that person who has undertaken the oath for New Mexico. At one and the same time, the
person may be "wearing both hats"-- but the status of wearing the second hat , which has no "official capacity of the State does not supercede the vitality and interests of the State.
Construing opinions in any other manner than the relative interests of the State and legislative intent promotes the individual's ambition for other office over the solemn duties under which he or she has already undertaken. The 10th Circuit Court of Appeals , where New Mexico is located has provided:
... the Supreme Court reiterated the importance of preventing corruption or its appearance in the context of political contribution limits. See McConnell, 540 U.S. at 33 ("Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits."). Homans v. Albuquerque ( 02-2316) It furthered in that case, contribution limits may be justified when they are "closely drawn" to serve a "sufficiently important interest"); Fed. Election Comm'n v. Mass. Citizens for Life, 479 U.S. 238, 259Ä60 (1986) ("We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending."). ...Speaking nearly five decades ago, Justice Frankfurter made the following assessment of the corruption and public confidence issue: We all know . . . that one of the great political evils of the time is the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions. Many believe that when an individual or association of individuals makes large contributions for the purpose of aiding candidates of political parties in winning elections, they expect, and sometimes demand, and occasionally, at least, receive, consideration by the beneficiaries of their contributions which not infrequently is harmful to the general public interest. ...It is well-established that the deterrence of corruption constitutes a compelling state interest. See Austin, 494 U.S. at 657Ä60; NC-PAC, 470 U.S. at 496Ä97.
Homans furthers: The Supreme Court likens "corruption" to the "subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." NCPAC, 470 U.S. at 497. Nevertheless, while the Supreme Court has routinely upheld contribution limits under the corruption rationale, it has equally routinely struck down spending restrictions. See Colorado II, 533 U.S. at 440-41. The reason for the difference is the Court's determination a grounded in law and common sense .
For as much, and more, it is respectfully requested that the opinion of February 7, 2007 be withdrawn for further review and analysis.
Respectfully submitted,
Cc: Richardson, Rawson, (open)
