AG splits with Duran on gov.'s license ads

King's office says using campaign funds for spots violates law


Steve Terrell | The New Mexican
Posted: Wednesday, March 30, 2011

The Attorney General's Office on Wednesday said Gov. Susana Martinez's campaign committee might have violated campaign laws by spending money on radio ads in support of a bill to prohibit driver's licenses for illegal immigrants.

In a letter to Secretary of State Dianna Duran, Albert Lama, deputy attorney general, said Duran's office should reconsider its decision that the Martinez ads were not in violation of the Campaign Reporting Act.

"Although you did not seek our advice in this matter, we are concerned that your interpretation of the Campaign Reporting Act is unnecessarily broad and may open the door to use of campaign contributions contrary to the Legislature's intent," Lama wrote.

But Lama's letter doesn't suggest that the attorney general is going to take any further action.

In February, Martinez's campaign committee spent $5,648 on radio spots that urged listeners to contact legislators and tell them to support bills aimed at stopping the practice of issuing driver's licenses to undocumented people.

The effect was not successful. The House and Senate couldn't agree on the driver's-license bill, so it died.

Somos Un Pueblo Unido, an immigrant-rights group, and Common Cause, a group that has advocated for election reforms, complained that the ads violated the Campaign Reporting Act.

On March 3, Duran wrote Somos, saying, "Susana Martinez meets the definition of a 'candidate' who has authorized her campaign committee to make expenditures for the purpose of seeking future election to office. ... I have no reasonable belief that Susana Martinez for Governor Committee committed any violation of the Campaign Reporting Act, and I do not intend to refer this matter to the Attorney General or a District Attorney."

Martinez and Duran are Republicans. Attorney General Gary King is a Democrat.

In his Wednesday letter, Lama argued that the act requires campaign money to be spent on campaign-related expenses. "Based on the information available to us at this time, the content of the radio ads does not obviously relate to a campaign or suggest that the purpose of the ads is to elect Gov. Martinez to office," he wrote. "The circumstances and the timing of the ads also are not consistent with an election campaign," he said, noting that the next gubernatorial election is in 2014.

"Instead, the radio ads seek to influence the Legislature's decision regarding laws that make driver's licenses available to illegal immigrants," Lama wrote. "In effect the committee is using campaign contributions to lobby the Legislature on an issue that is important to the governor and her administration."

Lama said the act "clearly distinguishes" campaign expenses from an elected official using money in promoting positions they take while in office or trying to influence the Legislature.

A spokesman for Martinez's campaign said Duran was correct in her ruling.

"Just like other groups and political parties that aired ads during the session, the governor has a First Amendment right to promote ideas and issues, including her desire to ban driver's licenses for illegal immigrants," Danny Diaz said. "The secretary of state has ruled this was perfectly fine, which is consistent not only with common practice, but more importantly, with the opinion of the United States Supreme Court."

He was referring to a 1976 case, Buckley v. Valeo, which, among other things, struck down limits on campaign expenditures in federal law.

Duran said in an email Wednesday, "The office of the Secretary of State has not received any correspondence or communication from the Attorney General on this matter. We find it surprising and unlikely that the Attorney General would decide to create some unsolicited legal advice for our office and immediately forward it to the media before sending it to us. This would seem to be a violation of the ethical obligations of any attorney. ..."

"Assuming the letter is legitimate, we have to note that it does not contain any reference to case law or legal precedent. It also contains no mention of the Supreme Court's or 10th Circuit's holdings on First Amendment issues. Accordingly, our office would have any number of questions concerning the opinions expressed in it."

During the legislative session, Common Cause New Mexico Executive Director Steve Allen said the Martinez campaign could have avoided any questions of legality by donating the money to an independent group to purchase the ads instead of directly buying them.

In her March 3 letter, Duran noted that the campaign committees of both Gov. Bill Richardson and King had spent money on consultants, polls and other expenses following the 2006 elections.

Contact Steve Terrell at 986-3037 or sterrell@sfnewmexican.com. Read his political blog at roundhouseroundup.com.

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