Veteran lawmaker challenges state campaign law

Mar. 18—A $200 political donation to help a Cibola High School student attend a workshop on health careers has triggered a report to the state Ethics Commission and, in response, a federal lawsuit seeking to invalidate a section of the state Campaign Reporting Act.

Veteran state Sen. Gerald Ortiz y Pino, an Albuquerque Democrat, is waging the legal challenge over how state candidates can spend campaign contributions, contending the Secretary of State's office is relying on an unconstitutional provision in law to initiate an enforcement action against him.

He filed a lawsuit on March 8 asking a federal judge to prohibit Secretary of State Maggie Toulouse Oliver, a Democrat, from enforcing certain state restrictions on political expenditures for charitable purposes.

Even though he isn't seeking re-election, Ortiz y Pino said he believes a federal ruling on the issue is important for all state legislators.

"It's an attempt at clarifying for the whole legislative body what exactly are the limits to which charitable contributions can be made," said Ortiz y Pino, whose campaign has donated to other varied causes, such as the Presbyterian Ear Institute, Cuidando de Los Niños, animal rescue organizations, the Coalition for Prisoners Rights and the Norbertine Community of Albuquerque.

In January 2021, Ortiz y Pino made a $200 "civic donation" to student Ariana Alvarado to support her academic endeavors in a weeklong out-of-state summer workshop on health careers for high school students.

His campaign reported the expenditure as a "donation to scholarship fund." But the Secretary of State's office concluded the expenditure isn't allowable under state law and wants him to replace funds spent on the student's trip with non-campaign money.

A Secretary of State auditor informed Ortiz y Pino that after requesting voluntary compliance and getting "inaction" in response, the matter was forwarded to the state Ethics Commission and state Attorney General for enforcement last month.

"Our office has been in extensive communication with the Senator over the past several months attempting to bring him into voluntary compliance on this issue," Secretary of State spokesman Alex Curtas said in a recent email.

"The Senator has previously stated his opinion that the law on this issue is unconstitutional, but without a court ruling we are nonetheless required to enforce the law as written, which is what we are doing. If the Senator is successful in challenging the constitutionality of this law, we will change our stance accordingly," Curtas added.

Ortiz y Pino is being represented by his campaign treasurer, who is also his attorney in the case, Phillip Baca, who will ask for attorney fees if he wins.

"He's carrying the flag on this," Ortiz y Pino said.

The lawsuit, filed in U.S. District Court in Albuquerque, contends the matter had been brewing for three years until after the 2024 legislative session adjourned, when the SOS notified Ortiz y Pino of its enforcement action. The lawsuit contends the Secretary of State waited until the senator was a "lame duck," given his decision to leave the Legislature when his term ends Dec. 31.

Toulouse Oliver "swooped in and reported the Good Senator to the State Ethics Commission and the Attorney General's Office for civil enforcement and criminal prosecution, penalizing the Good Senator for exercising his federal constitutional right to free speech and association by using his campaign funds to make a $200 political expenditure for charitable purposes," the lawsuit alleges.

Ortiz y Pino, in a Journal interview, recalled that the Cibola High School student was "doing fundraising because she was going to go to a summer program back East and she was contacting various people. She's not even in my district, but she got my name somehow. So I sent her a $200 check and a letter saying, 'Good luck, hope you do well.' And, you know, these are the kinds of programs that can really help young people clarify what they want to do with their lives."

The lawsuit states that Ortiz y Pino "frequently receives requests from New Mexico students for assistance with expenses related to special programs or events they have been nominated to participate in."

Ortiz y Pino, who has served in the Legislature since 2005, still has remaining campaign funds "and would like to use those funds to make similar political expenditures for charitable purposes," the lawsuit states.

But New Mexico law "discriminates based on the speech's content by selecting which charitable purposes the State of New Mexico favors," the lawsuit alleges.

For instance, the law does not allow elected officials to use their campaign funds to make political contributions for charitable purposes to associations that are not organized as 501c3s; or those organized as 501c4 advocacy organizations, the lawsuit states. It would also bar elected officials, for example, from making political expenditures to a group of concerned citizens "raising money to pay for someone's funeral expenses," the lawsuit states.

The lawsuit seeks a temporary restraining order requiring Toulouse Oliver to withdraw her enforcement action against Ortiz y Pino, and a declaratory judgment that Section 1-19-29.1(A)(4) of the Campaign Reporting Act is unconstitutional on its face.