State treasurer backs legislators in dispute with Lujan Grisham over spending authority

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Oct. 14—State Treasurer Tim Eichenberg is siding with two lawmakers who filed a lawsuit against Gov. Michelle Lujan Grisham over which branch of government has the authority to appropriate federal pandemic relief funds.

In a written response ordered by the state Supreme Court, an attorney for Eichenberg asserts the expenditure of COVID-19 relief funds requires legislative appropriation.

"Under the state constitution, only the Legislature has appropriation authority," the attorney, Linda Bennett, said in an interview Wednesday.

"The Legislature should have appropriation authority over the funds and then ... the governor should get a bill that appropriates the money, and she has the opportunity to veto it or sign it into law. That's what's supposed to happen under the constitution," Bennett added, noting the process allows the public to weigh in through their elective representatives.

Sen. Jacob Candelaria, D-Albuquerque, who filed the lawsuit along with Sen. Greg Baca, R-Belen, said Eichenberg's response "certainly strengthens the arguments" the legislators are making to the state's high court.

Eichenberg, like Lujan Grisham a Democrat, is term limited and will complete his second term in 2022.

"I really applaud the treasurer for making a decision in the case based upon the law and in respect of the state constitution and the Legislature's appropriation authority," Candelaria said.

"I think the treasurer says it best [in the written response]. Even a well-meaning governor should never be empowered with the sole authority to spend public money and to tax people, and that's really the simple principle that we're taking to the court," he added.

Nora Meyers Sackett, the governor's press secretary, did not respond to a request for an interview and instead issued a statement via email.

"Courts have previously made clear the Legislature may appropriate state, not federal, funds," she wrote. "We have no further comment on pending [litigation], as is our standing policy. The Lujan Grisham administration looks forward to continuing to provide ongoing support for economic rejuvenation throughout the state."

Last month, Candelaria and Baca, both attorneys by profession, teamed up in a show of bipartisanship and filed a lawsuit alleging the governor had violated the state constitution by appropriating $600 million of the state's $1.73 billion in American Recovery Plan Act funds without legislative approval.

The $600 million was used to backfill the state's unemployment fund, which Baca said he doesn't oppose.

"I think that was a fair use of the funds," he said. "But it's not about where it goes. It's about how it gets there and whether we're lawfully distributing money or whether we're doing it in violation of our laws."

The dispute over spending authority is long-running but resurfaced this year and has been simmering for months.

Lujan Grisham used her executive powers in April to line-item veto more than $1 billion in one-time expenditures the state was expecting in federal pandemic aid. In her veto message, the governor said she considered the appropriations an impermissible attempt by the Legislature to appropriate or control the allocation of federal funds, which some lawmakers disputed.

A Republican-led effort to convene the state Legislature in an extraordinary session to try to settle the dispute was unsuccessful.

Republicans also asked Attorney General Hector Balderas for a legal opinion regarding the matter.

"While the New Mexico Supreme Court is the ultimate authority in interpreting [the state constitution], our office is analyzing the case to determine the appropriate next steps," Matt Baca, chief counsel and spokesman for the Attorney General's Office, wrote in an email.

Greg Baca, who serves as Senate minority leader, accused the governor of overstepping her authority.

"The separation of powers clearly states that the Legislature's job is to appropriate money placed in the treasury, and that's what we expect to do," he said. "Ironically, the executive or the governor's job is to make sure laws are followed, which we're hoping she'll do."

The state Supreme Court also ordered Lujan Grisham to respond to the lawsuit by Friday. The administration filed a motion Tuesday, which the court granted, allowing its response to be 12,000 words instead of the 6,000 words provided for under the rules, Candelaria said.

He also said he looked forward to reading how the governor would justify her position.

"There's an old adage," he said. "When the law is on your side, you bang on the law. When the facts are on your side, you bang on the facts. And when neither are on your side, you bang on the table. I think what we're going to see in the governor's response on Friday is a lot of banging on the table because the law just isn't on her side."

Bennett, Eichenberg's attorney, concluded in the treasurer's response that "governmental action or inaction as to any particular program, public policy initiative, or governmental interest must be subject to participation by New Mexico citizens through the legislative process in our participatory democracy."

"That's how you get the most public participation and accountability over the use of the funds," Bennett said. "That's what we want, and that's what the founders envisioned because we have the same system of government in New Mexico as they have at the federal level. That's how it's supposed to work."

Follow Daniel J. Chacón on Twitter @danieljchacon.

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