More Trouble for SOS Dianna Duran? AG Office Disagrees With Her Opinion on Susana Martinez Radio Ads

Dianna Duran, Susana Martinez

Uh oh -- another incident questioning the judgment of New Mexico Secretary of State Dianna Duran came to light today via Attorney General Gary King's office. Close on the heels of today's call for Duran to immediately resign her post due to racist "humor" contained on an official document issued by her office, it was revealed that AG's office issued a letter disagreeing with Duran's decision that anti-immigrant radio ads paid for by Gov. Susana Martinez's campaign office were a proper use of the funds.

According to a story by Steve Terrell in today's Santa Fe New Mexican, the AG's office said yesterday that "Gov. Susana Martinez's campaign committee might have violated campaign laws by spending money on radio ads in support of a bill to prohibit driver's licenses for illegal immigrants."

In a letter to Secretary of State Dianna Duran, Albert Lama, deputy attorney general, said Duran's office should reconsider its decision that the Martinez ads were not in violation of the Campaign Reporting Act. 

"Although you did not seek our advice in this matter, we are concerned that your interpretation of the Campaign Reporting Act is unnecessarily broad and may open the door to use of campaign contributions contrary to the Legislature's intent," Lama wrote. 

At Issue
Last month, both Somos Un Pueblo Unido and Common Cause New Mexico about the use of Martinez's campaign fund for the ads, contending that the governor violated campaign finance laws by tapping into the fund after her campaign had ended. Somos Un Pueblo Unido filed a formal complaint about the funding with Duran's office. Duran later said the use of the funds was proper, although she failed to consult with the Attorney General's office before issuing her decision letter.

On March 3, Duran wrote Somos, saying, "Susana Martinez meets the definition of a 'candidate' who has authorized her campaign committee to make expenditures for the purpose of seeking future election to office. ... I have no reasonable belief that Susana Martinez for Governor Committee committed any violation of the Campaign Reporting Act, and I do not intend to refer this matter to the Attorney General or a District Attorney." 

Martinez's campaign committee spent $5,648 in February on radio ads that urged listeners to contact legislators and tell them to support bills aimed at repealing the issuance of driver's licenses to undocumented people and foreign nationals. Despite a big push from the Martinez administration -- and her staffers videoing debates on the issue in an apparent attempt to gather footage that could be used against Democrats in the 2012 election -- repeal of the law failed. 

Lama and Martinez Campaign Disagree
In yesterday's letter to Duran:

... Lama argued that the act requires campaign money to be spent on campaign-related expenses. "Based on the information available to us at this time, the content of the radio ads does not obviously relate to a campaign or suggest that the purpose of the ads is to elect Gov. Martinez to office," he wrote. "The circumstances and the timing of the ads also are not consistent with an election campaign," he said, noting that the next gubernatorial election is in 2014."

Instead, the radio ads seek to influence the Legislature's decision regarding laws that make driver's licenses available to illegal immigrants," Lama wrote. "In effect the committee is using campaign contributions to lobby the Legislature on an issue that is important to the governor and her administration." 

Lama said the act "clearly distinguishes" campaign expenses from an elected official using money in promoting positions they take while in office or trying to influence the Legislature. 

In a response to Lama's letter, a spokesman for the Martinez campaign said Duran's decision on the funding was the right one because the governor was merely exercising her First Amendment rights with the ads.

"Just like other groups and political parties that aired ads during the session, the governor has a First Amendment right to promote ideas and issues, including her desire to ban driver's licenses for illegal immigrants," Danny Diaz said. "The secretary of state has ruled this was perfectly fine, which is consistent not only with common practice, but more importantly, with the opinion of the United States Supreme Court."

He was referring to a 1976 case, Buckley v. Valeo, which, among other things, struck down limits on campaign expenditures in federal law.

What Does the Law Say?
Click to see the provisions (pdf) of New Mexico’s Campaign Reporting Act describing the lawful uses of a candidate’s campaign funds.

As Somos Un Pueblo Unidos pointed out in their complaint to Duran's office:

"(The act) allows such funds to be used only for the payment of campaign debts, donations to charities or the state's general fund, contributions to other candidates or political parties and refunds to the contributors."

Is Dianna Duran just misinterpreting the law, or is this another example of Martinez and her right-wingers putting politics above ethical practices and the law? Seems pretty clear to me that campaign funds are supposed to be used for campaign activities -- not for lobbying the legislature. What do you think?