Not-So-Free Speech

Nonprofits That Spend Money To Talk About Candidates Could Be Silenced

Simon McCormack
6 min read
Not-So-Free Speech
One of the flyers New Mexico Youth Organized sent out that the group says constitutes issue advocacy but the attorney general calls campaign literature.
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A decision last week by New Mexico Secretary of State Mary Herrera could have a major effect on what some nonprofit organizations do and say.

Herrera ordered the politically oriented nonprofit group New Mexico Youth Organized to register as a Political Action Committee, or PAC. The decision could cause the group to lose its nonprofit status and would also mean Youth Organized would have to disclose all of its funding sources.

The larger impact of the decision could be felt across the state if other nonprofits, hoping to avoid being labeled a PAC, stop engaging in certain types of politically charged activities.

Some Backstory

Youth Organized was one of a handful of organizations that sent mailers to constituents in various state legislative districts. The flyers had information on lawmakers’ voting records as well as statistics on where the legislators’ campaign contributions came from. The point of the mailers was to show a correlation between the money they got from special interests (like the medical or oil and gas industries) and how the lawmakers voted on certain issues.

Youth Organized calls these types of activities "issue advocacy," but
Attorney General Gary King says it’s flat-out political campaigning, which makes the group a PAC.

The Attorney General’s Office got into the action after incumbent Democratic
Sen. Shannon Robinson complained that Youth Organized wasn’t playing by the rules. Youth Organized sent out mailers that were critical of the senator’s voting record. Robinson lost in the primary elections in June to challenger Tim Keller.

Keegan King, executive director of Youth Organized, says the flyers were a service to the community. "All of the mail we sent out was distributed so we could educate New Mexicans, who have a right to know how their elected officials vote," King says. "Not a lot of people have the time and the resources to do this research, so we did it."

Phil Sisneros, spokesperson for the Attorney General’s Office, says the mailers were clearly meant to influence a political campaign. "We have a law that says you have to register as a PAC if you’re going to engage in campaign activities," Sisneros says.

When asked why his department made the decision to require Youth Organized to register, secretary of state spokesperson James Flores says Herrera acted on the advice of the attorney general. He would not elaborate further.

Broader Implications

King says his organization will use every legal means necessary to fight the secretary of state’s decision. But if it’s allowed to stand, King’s group may not be the only one that faces some decisions about the types of activities it takes part in.

Robby Rodriguez, executive director for the
SouthWest Organizing Project, says his group sends out flyers similar to the ones Youth Organized distributed. If his organization is asked to either stop sending out politically themed mailers or register as a PAC, Rodriguez says it could muffle SWOP’s voice. "We would never be able to say anything good or bad about a sitting elected official," Rodriguez says. "We’d never be able to be critical of these guys, and that’s ridiculous."

Some nonprofits don’t want to register as PACs, because doing so could affect how much funding they get, says Matt Brix, policy director for the
Center for Civic Policy. Brix’s organization is the parent group that provides funding for entities like SWOP and Youth Organized. Brix says there might be less money to go around since donors would rather give to a nonprofit organization that’s not a PAC. "A charitable committee is not going to be interested in giving to a political group," Brix says. "They’ll want to give to service organizations."

Brix also says his group and its affiliates take part in a lot more than just issue advocacy. "That’s a small minority of the stuff we do," he says. "We provide a much fuller menu of services to the community." Among those activities are youth education, park cleanup and homeless care.

Brix notes that PACs have to disclose all of their contributors, which could also affect funding. This is because some donors giving to controversial causes like the abortion-rights movement might not want their names released. "In certain situations, some donors could be in danger if their names get out there," Brix says. The Center for Civic Policy voluntarily discloses about 95 percent of its donors, Brix says.

Sisneros contends the Attorney General’s Office isn’t interested in stifling anyone’s free speech. "There’s been some thought that the attorney general and the secretary of state are trying to muzzle nonprofits, and that’s not what’s happening at all," Sisneros says. "This decision has no effect on anybody’s right to do anything."

But Rodriguez says the Attorney General’s Office and the secretary of state are playing politics. He says nobody raised a fuss about these types of mailers until they caused incumbents to lose. "It’s when they don’t like what we’re saying or when they feel challenged by what we’re saying that they take action," Rodriguez says. "That’s not a coincidence."

"Being Right Isn’t Always the Point"

For Sen. Robinson, Herrera’s decision was encouraging but not altogether satisfying. In addition to filing a complaint with the Attorney General’s Office about Youth Organized, Robinson and two of his fellow legislators, Rep. Daniel Silva and Sen. James Taylor, filed a lawsuit against Youth Organized and several other nonprofit groups. All three lawmakers lost in the primary elections in June, and all three blame the mailers sent out by nonprofits for their defeats. Also named in the lawsuit are Tim Keller (who beat Robinson) Eleanor Chavez (who beat Silva) and Eric Griego (who beat Taylor).

The lawsuit requests the results of the election be declared void on the grounds that all three candidates conspired with each other and the nonprofit organizations to win the election. Robinson says he believes the three victorious candidates paid the nonprofits to aid them in their cause.

"I wish the secretary of state would have made her decision sooner," Robinson says. "Sometimes being right isn’t always the point."

Keller is adamant that no conspiracy exists and that Robinson and the others bringing the lawsuit are simply upset they lost. "The lawsuit is baseless and absurd," Keller says. "It’s insulting to the voters. They’re smart. They know Shannon’s history, and they made a choice on election day for change."
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