Democrat PRC candidate Al Park made a last-ditch attempt in Federal Court to prevent his opponents from spending their campaign funds.
Park, a PAC and the Bernalillo County Republican Party used the argument that money is speech to make their eleventh-hour stand on Friday at 4 p.m. Primary election day is tomorrow.
First, some background. In New Mexico, candidates for the Public Regulation Commission and statewide judicial posts can use public financing to run their campaigns. Contenders were able to get about $30,000 from the state make a run at the PRC job. Democrats Cynthia Hall and Karen Montoya chose this option. Park, on the other hand, filled a war chest with more than $150,000 for the primary race.
Because he raised so much money, matching funds were triggered. Montoya and Hall were due another $60,000 in public cash to keep up.
But a year ago, the Supreme Court ruled that matching funds are unconstitutional in Arizona Free Enterprise Club v. Bennett. Just as with the Citizens United ruling (famously pummeled by Stephen Colbert), the Bennett decision is based on the idea that money is political speech. Therefore, matching funds dilute the speech of people who donated to privately financed candidates. And that speech, said our nation's justices, is protected under the First Amendment.
At the hearing Friday, Park argued that thousands of contributors would be impacted if his opponents could spend their matching funds. The contenders with private war chests would also suffer irreparable harm, he said. "If these candidates lose, there is no recourse."
Park, by the way, voted as a legislator in favor of the bill that brought public financing to these races in 2003—a fact he acknowledged during the hearing. But, he said, that was before the high court ruled on Bennett. "The Bennett case is the law of the land."
New Mexico's Voter Action Act, he pointed out, was patterned after Arizona's law, which was at issue in the Bennett case.
But, argued lawyer Antoinette Sedillo Lopez, there are some key differences. In some Arizona races, candidates are given as much as $250,000, she said. In New Mexico the initial sum is much smaller. That makes the matching funds more crucial. She represented Judge Victor Lopez, a publicly financed candidate for the Court of Appeals who would also be affected by Friday's decision.
Sedillo Lopez said in New Mexico, judges are never allowed to know who donates to their campaigns because there's a threat that a contributor may later have a case before the judge. She added that those who chose to gather private donations still host fundraisers, and "it's not like they wear blindfolds to those fundraisers." That's why public financing is critical to the independence of the judiciary, she said.
In the 2012 legislative session, a bill was introduced to do away with New Mexico's matching funds. The secretary of state and the attorney general testified in favor of the measure. But it failed. The constitutionality issue was still part of Republican Secretary of State Dianna Duran's justification for not issuing the matching funds to the candidates. She was finally forced in State Court to release the funds on Friday morning, leaving the candidates just a few days to spend $60,000. The afternoon hearing in Federal Court attempted to block them from using the money even though it had been dispersed earlier in the day.
PRC candidate Hall said in an interview this afternoon that she wasn't sure she could spend it all, but she's going to get pretty close. Radio ads and robo-calls kicked up over the weekend, and she's got a staff of people working 12-hour days, going door-to-door and making phone calls. She couldn't get any TV ads on the air because she got the money too late, she said.
"In the past two days, I’ve thought, Gee, how different my campaign would have been if I had gotten this money when I was supposed to." That was back on April 30, she said. The secretary of state will be taken to task, she added. She's not sure yet whether she will sue Duran, she said, but "I think we'd be doing the public a favor."
The Supreme Court's decisions in Citizens United and Bennett are out of touch with what citizens really want, Hall said. The idea that money is speech gives power to the wealthy: "It elevates the value of private money over the value of voters' interest in fair elections." Eventually, the Supreme Court usually catches up with a cultural shift, she added, and around the country, people are working to overturn these bad calls.