Governor should sign ‘dark-money’ bill
The New Mexico Legislature took a significant step toward ensuring transparency and diminishing unchecked “dark money” in state elections this legislative session by approving Senate Bill 96. Now it is the governor’s turn to give New Mexico voters a break.
On March 13, the New Mexico House of Representatives passed Senate Bill 96, which mandates greater disclosure of independent spending in New Mexico elections. The state Senate, which originally passed Senate Bill 96 in February, signed off on the House’s amendments the next day. The legislation now is before Gov. Susana Martinez, whose signature would bring welcome closure to New Mexico’s six-year battle for increased transparency of outside money in political races.
New Mexico is one of only a handful of states that does not require “outside” groups, like corporations and other organizations not operated primarily for a political purpose, to disclose funding sources when they pay for advertisements expressly advocating the election or defeat of state and local candidates. Consequently, New Mexico’s elections are especially susceptible to “dark money,” or undisclosed campaignrelated spending, spent by corporations and special interests that are not legally obligated to inform the public about who is bankrolling their political messaging.
The dark money phenomenon is largely attributable to a 2010 decision by the U.S. Supreme Court, Citizens United vs. FEC, which enabled corporations and unions to spend unlimited sums to influence the outcome of elections so long as their spending was legally “independent” from candidates. Ironically, part of the Court’s rationale for removing the corporate and union spending prohibition was that the justices assumed the sources of all of the money flowing into our elections would be disclosed. The Court’s assumption on disclosure has, unfortunately, been proven very wrong.
Since 2010 and the ensuing influx of undisclosed money in elections, many states have enacted laws requiring groups sponsoring political ads to reveal, to some extent, the sources of their funds. Every year since 2011, New Mexico’s Senate Majority Leader Peter Wirth has introduced legislation to require disclosure by outside groups spending to influence New Mexico elections. These efforts consistently floundered amid opposition in the House, however, until that chamber’s bipartisan vote in favor of SB 96 on March 13.
The key provision of SB 96 would require a group spending over $1,000 on “independent expenditures” (i.e., communications expressly advocating the election or defeat of a candidate that are made independently from the candidate) to file a publicly accessible report with the secretary of state.
A report also is necessary if an expenditure is made for a communication referring to a candidate in the immediate timeframe before an election.
In general, the report must include the name and address of the group sponsoring the independent expenditure; identify the date, amount, and purpose of the expenditure; and disclose information about certain donors to the sponsoring group.
Additionally, SB 96 would necessitate that political advertisements include an on-ad disclaimer identifying who authorized and paid for the advertisement.
Contrary to assertions by dark money proponents, SB 96 does not threaten to regulate true charities. In fact, the federal tax code already prohibits charities from spending money to influence elections— and strictly limits the amount of lobbying they can conduct as well.
Concerns that SB 96 could impact such groups are entirely hypothetical. SB 96 will apply only to political communications and simply provides basic information to New Mexico’s voters about the real sources of money funding advertisements that support or oppose ballot measures or candidates— the people who will make decisions directly impacting New Mexico jobs, communities and livelihoods. As the Supreme Court has recognized, the most important function of disclosure requirements, like those in SB 96, is to “help citizens make informed choices in the political marketplace.”
Disclosure of the sources of money spent to influence our elections has long been considered a central tenet of a free and transparent democracy. Martinez should recognize the merits of disclosure and sign this critical bill into law.
Trevor Potter is a well-known Republican campaign finance lawyer who is the president of the democracy reform organization, the Campaign Legal Center, in Washington, D.C.