RIO RANCHO — Attorneys for a nonprofit at the center of an election-year controversy threatened to sue the state Saturday if Attorney General Gary King tells the Secretary of State’s Office that the organization is not operating as a non-profit and should be subject to different laws.

"The Attorney General’s statement that he recognizes what can be regulated on the basis of whether it ‘walks like a duck’ is an indication that he doesn’t understand the law in this area, and he is inviting entirely unnecessary litigation against the State of New Mexico," attorneys John Boyd and Sara Berger said in a joint written statement Saturday afternoon.

King on Friday said in a strongly worded press release that he believed the group had crossed the line into political campaigning, from political lobbying, because of mailers it sent out prior to the June 3 primary. He ended his statement with a pithy statement: "If it walks like a duck and quacks like a duck, then it’s probably a duck."  

The statement by Boyd and Berger, who represent Center for Civic Policy, which oversees the nonprofit in question — New Mexico Youth Organized, upped the stakes in a situation that for weeks has played out in private but in recent days has heated up.

At stake in the confrontation with King is New Mexico Youth Organized’s legal status. NMYO would become a political action committee and be governed by stricter rules were it stripped of its nonprofit status.

Also at stake is the ability of New Mexico’s nonprofits to hold elected officials accountable, Eli Il Yong Lee, the executive director of Center for Civic Policy, said in his own statement.

"We are disappointed by Attorney General King’s uncharacteristically glib assessment of a serious matter," Lee said. "Further, we are disappointed that the Attorney General is issuing a verdict through the media prior to his office completing its research on this matter."

A call was placed to King’s spokesman for a response but he did not immediately call back. An attempt to reach King also was unsuccessful.

Both the Center for Civic Policy and New Mexico Youth Organized are defendants in a lawsuit (here and here) filed last week by three lawmakers who say NMYO mailers that went out in the months prior to the June 3 primary crossed the line into electioneering. The mailers were sent to the legislators’ constituents and included information on what industries had given the most to the lawmakers as well as how they had voted on certain legislative bills.

The nonprofits have argued that the mailers were educational and therefore do not violate rules nonprofits must abide by.

Boyd and Berger continued on that line of argument Saturday. The two attorneys said in their statement that the U.S. Supreme Court has made it clear that "election officials are only permitted to regulate public statements that explicitly address elections. They are not permitted to regulate public statements that relate to officeholders’ conduct, even though those officeholders may be running for re-election."

King on Friday traced his belief that New Mexico Youth Organized had participated in political campaigning to a May 22 letter that was sent to the Secretary of State’s Office by King’s chief deputy, Albert Lama. In that letter Lama requested that the agency change New Mexico Youth Organized’s status from nonprofit to political action committee.

King’s release Friday appeared to be a direct response to an article in the New Mexico Independent published earlier that day in which the deputy secretary of state was quoted as saying the AG’s office had told him to disregard the advice in the May 22 letter.

“If the deputy secretary of state thought we had instructed him to simply ignore our letter, then that was a misunderstanding on his part of what was said,” King said in the release.

Contacted Friday after the AG had issued its press release, deputy Secretary of State Don Francisco Trujillo said the Independent had quoted him correctly. He also said no one from the AG’s office had called him to tell him that the situation had changed. 

The Attorney General’s press release went on to say that his office continues to firmly support the position in the letter. But at the same time it says the AG is continuing to study the issue.

That ongoing effort took place after the Secretary of State’s Office forwarded a letter from the Center for Civic Policy. "In the letter, the (Center for Civic Policy) set forth a number of claims supporting NMYO’s actions and urged the Secretary of State not to grant the (Attorney General’s) request," King said in his release. "Before they made a decision to disregard or follow the AG’s advice, the SOS was asked to let the AG’s office closely examine the CCP’s claims and report back. That is where the issue stands today."

Phil Sisneros, a spokesman for the Attorney General’s office, said Friday the only reason the secretary of state hasn’t acted is because the AG asked that office to hold off while it considered the arguments of the Center for Civic Policy. 

“We wanted to see what the Center for Civic Policy was saying too, why they were saying our advice was incorrect or flawed,” Sisneros said. “We’re doing the due diligence on this.”

Lest anyone think that means King’s office might back away from Lama’s letter, Sisneros said in an interview that isn’t going to happen.

“We’re pretty firm in the position,” he said. But Sisneros also told the Independent on Thursday that the office remains open to how it would decide the issue. 

Sisneros said there’s no timeline for when the AG will complete its review of the Center for Civic Policy’s arguments.

 

 

Editors note: When the Center for Independent Media in Washington was starting up New Mexico Independent earlier this year, the Center for Civic Policy helped it locate funding sources.