Federal judge halts "de facto" ban on use of campaign funds; state senator Ortiz y Pino donated $200 for student workshop

Colleen Heild, Albuquerque Journal, N.M.
·4 min read

Nov. 1—Veteran state Sen. Jerry Ortiz y Pino of Albuquerque tapped his campaign account in 2021 to make a $200 donation for a high school student's summer workshop.

The modest expenditure was subsequently deemed illegal under the state's Campaign Reporting Act, but a federal judge this week decided the ban on charitable donations to individuals was itself problematic.

So U.S. District Judge Margaret Strickland of Las Cruces halted, at least for now, any enforcement of the provision by the New Mexico Secretary of State's Office — for any political candidate with campaign money to spend.

Strickland agreed with Ortiz y Pino's request for a preliminary injunction to keep Secretary of State Maggie Toulouse Oliver from referring such campaign expenditures for civil and criminal enforcement.

"The threatened injury to Senator Ortiz y Pino's First Amendment rights to political speech outweigh the harm a preliminary injunction may cause Secretary Toulouse Oliver," Strickland wrote. "... (T)he Court finds that an injunction will not adversely affect the public interest. Enjoining a statute that restricts political speech promotes the public interest."

The ruling came after Ortiz y Pino, a Democrat, sued Secretary of State Toulouse Oliver in March, contending that her enforcement of that part of the campaign reporting law violated the First Amendment. Her office asked Ortiz y Pino to repay the $200 to his campaign funds, but he refused. She referred the matter to the state Attorney General's Office and the State Ethics Commission, which took no action.

Ortiz y Pino, who isn't running for reelection this year, reported the $200 expenditure on his campaign finance report filed with the Secretary of State. The money went to high school student Ariana Alvarado to "support her academic endeavors so she could participate in a weeklong, out-of-state workshop ... for high school students," his lawsuit states.

New Mexico law permits political candidates to use campaign funds to make charitable donations not to individuals, but only to nonprofit organizations that fall under section 501©(3) of the Internal Revenue Code. Such campaign funds also can go to the expenditures of a campaign and to legislators' expenditures for mail, telephone and travel to service constituents. But legislators can't use the funds for personal or legislative session living expenses.

It's too late to bring a criminal prosecution because of the 3-year statute of limitations, the judge found.

Meanwhile, the State Ethics Commission, which has authority to bring a civil action, informed Ortiz y Pino that "the specific circumstances surrounding the expenditure (to Ms. Alvarado), including the timing and amount of the contested expenditure, in addition to the fact that Senator Ortiz y Pino is not seeking reelection, together do not support the use of the Commission's resources and personnel to commence a civil action related to this expenditure."

Ortiz y Pino said his campaign treasurer and Albuquerque lawyer Phillip Baca in particular believed the secretary of state had overstepped her powers by requiring that only charitable contributions can be made to a 501(c)(3) organization. The case is expected to proceed on whether a permanent injunction should be issued.

A spokesman for the secretary of state told the Journal this week that no decision has been made as to whether the agency will appeal the judge's ruling.

Ortiz y Pino said in a Journal interview that what's important is for candidates to report such expenditures on campaign finance reports filed with the secretary of state. "If you're giving money to your sister-in-law or to a would-be supporter in return for support, that kind of situation would be different," he added.

In court filings, he noted that the Cibola High School student, who wasn't a constituent, had been raising money to attend a workshop for high school students interested in health careers.

Strickland's ruling stated that a preliminary injunction will not, as Toulouse Oliver had argued, prevent the state from enforcing the Campaign Reporting Act; "it simply will be preliminary enjoined from enforcing (the) de facto ban on using campaign funds to make charitable donations to individuals."

The judge also found that the secretary of state offered no evidence to show that a ban on giving charitable contributions to individuals was enacted to prevent quid pro quo corruption.

Citing a prior court opinion that a candidate's spending does nothing to corrupt the candidate, she wrote, "a preliminary injunction will not weaken public confidence by preventing New Mexico from regulating quid pro quo corruption (or the appearance thereof)."