Lawmakers Don’t Act; Taxpayers Pay
When the Legislature met early this year, state lawmakers knew a U.S. Supreme Court ruling meant a major provision in New Mexico’s law on public financing of campaigns was likely unconstitutional.
But legislators didn’t fix the law, leading to uncertainty and chaos in some races, a successful lawsuit against the state and a legal bill of nearly $100,000 for taxpayers, payable to the lawyers who sued the state.
The problem was with the matching funds provision of the Voter Action Act, which provides for public financing of campaigns for the Appeals and Supreme courts and Public Regulation Commission.
Under the act, candidates who accept public financing are
eligible for additional money, or matching funds, if they are outspent by opponents who declined public financing.
The Supreme Court last year struck down a similar matching funds provision in Arizona as an unconstitutional infringement on political speech under the First Amendment.
The court said privately funded candidates might be reluctant to spend money on political speech if they know it’s going to be matched by publicly financed speech.
The lawsuit over New Mexico’s law was brought by the Bernalillo County Republican Party and others, which were represented by attorneys with the law firm of former GOP National Committeeman and state Sen. Mickey Barnett.
Democratic state Rep. Al Park of Albuquerque, a candidate for the PRC in the June primary, also intervened in the case on the side of the Republicans.
Park had declined public financing of his campaign and wanted to prevent his publicly financed opponents from receiving funds to match his spending.
In a decision in July that echoed the Supreme Court decision in the Arizona case, federal Judge David Ebel struck down the matching provision in New Mexico’s law.
Under federal law, a prevailing party in a civil rights case may seek attorney fees and costs, and both the Barnett firm and Park filed motions for payment.
The Barnett firm sought $82,416 in attorney fees and costs, with lead attorney Colin Hunter billing at an hourly rate of $285.
Park wanted nearly $33,780 in attorney fees and taxes, billing at an hourly rate of $350.
The Risk Management Division, which acts like an insurance company for government, settled with the attorneys in October, agreeing to pay the Barnett firm $72,878 and Park $24,129, according to Risk Management spokesman Tim Korte.
But in an odd twist, the parties apparently didn’t tell the judge of the settlements.
So, two weeks ago, Ebel issued his order, awarding the Barnett firm the full amount it sought ($82,416) but denying Park’s request for attorney fees.
Ebel wrote in his order that under federal law, a lawyer like Park who represents himself in a civil rights lawsuit isn’t entitled to attorney fees.
Risk Management previously agreed to pay attorney fees to Park because of its understanding that he represented his campaign, not himself, in the lawsuit.
The judge’s order on the applications to the court for attorney fees apparently won’t have any impact on the earlier Risk Management settlements with the Barnett firm and Park.
The lawsuit over public financing and the legal bill for taxpayers could have been easily avoided.
In the 30-day session of the Legislature this year, a bill was introduced to address the Supreme Court ruling and the constitutional problem with New Mexico’s law.
Under the measure, publicly financed candidates would no longer receive matching funds based on opposition spending. Instead, publicly financed candidates would be able to collect small private donations and matching funds would be based on total contributions.
The legislation never even got a committee hearing.
Just days before the primary election in June, Secretary of State Dianna Duran announced she wouldn’t provide matching funds to PRC and judicial candidates because of concerns about the law’s constitutionality.
But state District Judge Barbara Vigil stepped in, ordering Duran to allocate the matching funds to the candidates who qualified for it based on spending by their privately financed opponents.
The judge said Duran had a legal duty to provide the money since no court had specifically found New Mexico law’s on public financing unconstitutional.
The federal judge issued his ruling a month later, blocking any matching funds for publicly financed candidates before the general election in November. As it turned out, no candidate would have qualified for the money anyway.
Park lost his primary race for the PRC to Bernalillo County Assessor Karen Montoya, who was publicly financed.
The judge’s ruling essentially gutted New Mexico’s law on public financing of campaigns, but legislators will get another chance to fix the problem when they convene in January.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to www.abqjournal.com/letters/new to submit a letter to the editor.