Tuesday, August 4, 2009

New Mexico Federal District Court Holds State Law Violates Nonprofits's First Amendment Rights: Nonprofits Appear Engaged in Campaign Intervention

A federal judge in New Mexico ruled yesterday (full text) that New Mexico violated the free speech rights of two nonprofit organizations, New Mexico Youth Organized and Southwest Organizing Project, when it required the two organizations to register as political committees under the New Mexico Campaign Report Act..  The requirement was imposed after the two organizations sent letters to constituents that were critical of certain state lawmakers, according to a story in The New Mexico Independent

In the closely watched federal case, Judge Judith Herrera overwhelmingly sided with the two nonprofits — New Mexico Youth Organized and SouthWest Organizing Project — ruling that requiring such action was infringing on the two organizations’ free speech rights.  Specifically, Secretary of State Mary Herrera and Attorney General Gary King contended last year that several mailings the two nonprofits sent out in 2008 triggered a state law requiring them to register as “political committees” engaged in electioneering.

While the two nonprofits seem to have won the free speech issue, one has to wonder if the victory has opened them up to a campaign intervention charge.  According to the opinion, the two groups letters criticized 

"several incumbent state legislators for the stances they took on certain initiatives in the legislative session that had just concluded, pointing out the primary sources of the individual legislators' campaign funding, and urging recipients to contact the legislators to express their concerns about the legislators' votes and funding sources.  The mailings suggested that the legislators were beholden to corporate interests rather than actually working for the public good.  The mailings were targeted to the individual legislators' constitutents, and each mailing mentioned an upcoming special legislative session focused on healthcare that wa to take place in the summer of 2008."

The opinion also notes that one of the nonprofits website was owned by a 501(c)(4) that seems clearly operated for political campaign purposes.  indeed, much of the opinion is written in the language realting to the rights of individuals to participate in campaign activities rather than legislative activities.  Me thinks the two organizations better be careful what they complain about.



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