Rep. Ken Martinez, Senator Michael Sanchez and the Politician Protection Act of 2009

In years past, the legislature has deployed a defensive strategy on ethics reform – just kill all the bills they don’t want.

That strategy changed this year, with the filing (on the last day to introduce new legislation) of HB891, sponsored by House Majority Leader Ken Martinez and Senate Majority Leader Michael Sanchez. While a committee substitute is likely, you can see their original bill here.

Ethics bills have been killed over the past several years with Sanchez and Martinez overseeing their demise. They fear things like contribution limits, public financing, an independent ethics commission and open conference committees. They believe these reforms will make it harder for their roundhouse brethren to win re-election.

But playing defense is not enough anymore. Now Martinez and Sanchez – both smart attorneys – are going on the offensive. They want to actually suppress dissent from pesky nonprofits that dare to call attention to the actions of the legislative colleagues they feel they must protect.

This bill from Rep. Martinez and Senator Sanchez should be named the “Politician Protection Act of 2009.”

At first glance, their bill seems reasonable. You can bet that Martinez and Sanchez will present it as such. All it does is require nonprofit organizations that engage in “electioneering communications” to report their organizational donors to the Attorney General.

Seems sensible, right?

Just wait til you see what they really want to do.

First, this bill just targets nonprofits. It says nothing of industries like SunCal, or big oil and insurance companies.  What is the rationale for selectively singling out just nonprofits?

Second, Martinez and Sanchez define “electioneering communication” to mean any advertisement or mailing that simply mentions a candidate (read incumbent elected official) and is made anytime between late January and November – a full ten months – during an election year. Note that this period coincides with the 30-day legislative session – as well as any special session that might be called.

Think about that. If a domestic violence group or a LGBT group or the Catholic Church sends out a mailing to supporters asking them to contact their legislator about a bill – during the legislative session –those groups and the Church will have to disclose to the Attorney General every single one of their donors who give over $5,000. The United States Supreme Court has ruled definitively that disclosure requirements are an infringement of free speech, plain and simple.

But if a SunCal, or a coal company, or any business trying to get a tax break from the state does the same thing at the very same time, they won’t have to report a single thing about their annual finances.

Coming from two smart attorneys like Martinez and Sanchez, this bill could not be more poorly conceived. It is constitutionally defective on its face. It violates the First Amendment Free Speech rights of nonprofits — as upheld by a consistent series of federal court decisions over the last several years.

By this “Politician Protection Act,” Martinez and Sanchez have effectively torn away any remaining pretense that they are ethics reformers. Chilling speech is a serious matter. And that’s exactly what their bill does. This naked attempt to suppress dissent is entirely consistent with their record of stalling and killing real ethics reform in New Mexico. That’s not leadership anyone can believe in.

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