The process of making laws in a democracy is messy. And many of the people in whose name laws are made have no idea how it happens. The most common metaphor to describe the process that will begin anew on Jan. 21 is that it’s like making sausage:
Whether you are standing on the edge or struggling at the center, you're not quite ever sure what you are biting into. And in New Mexico, it's a spicy, mysterious product called chorizo.
Conventional wisdom, writes former Sen. Dede Feldman in her new book Inside the New Mexico Senate, is that it's preferable to enjoy the taste of the sausage without knowing how it was made or what the ingredients are. Yet after spending 16 years as a Democrat in the state Senate, Feldman is done mincing words. She's got a few things to say about the way the state's legislative process works, and more importantly, the way it should work in what she calls the "chorizo lab."
"Everything about this system is draining the courage out of individuals and that is really a shame," she tells SFR. "We have such great challenges that we need courage and sincerity. I think people are really crying out for that...I felt the place was in need of such reform that somebody has got to speak about it who has actually been there."
and Resistance," and although she went with a more playful "Boots, Suits and Citizens," Feldman says the work is still intended as homage to advocates and reformers as well as a way to expose power peddlers and their real motivations.
First elected to the Senate from Albuquerque's North Valley in 1996 and retired from the post in 2012, Feldman's earlier career as a newspaper reporter shows up in her keen storytelling. Copious notes and personal journals she created during her time at the Roundhouse served as her body of research, along with journalists' accounts from the stalwart legislative press corps and documents on file at the Legislative Council Service library. She also drew on her experience as an adjunct professor of political science at UNM, and interviewed more than 100 key players, including staff, advocates and other elected officials.
Think you know what happened in 2001 when Senate Pro Tem Manny Aragon lost his throne in a dramatic coup? Think again. Feldman takes the reader inside a key meeting of the Democratic Caucus, which ended with Aragon dramatically quoting Mexican revolutionary Emilio Zapata "I'd rather die on my feet than live on my knees. This caucus is over."
The book was published just before Aragon was released from prison after serving time for a kickback scheme. Today he's on house arrest at a lavish home that Feldman visited. The quote, she says, is engraved in the floor of an entryway in his home.
Aragon is one of the more colorful members in a senatorial cast of characters that Feldman calls “a wild mix of mavericks from all over the state.” Her metaphors about the Senate go on to compare proceedings to sporting events as she describes New Mexico as having an “accessible, retail style of politics” and floor debates that are “by turns solemn, raucous, formal, outrageous, boring and nonsensical.” The whole affair, she writes, felt at times like “riding a motorcycle in a thunderstorm in the nude.”
One of the biggest flaws that Feldman sees in New Mexico's system is the ultra-part-time nature of the legislative branch, what she calls a "largely archaic setup."
First comes the schedule. The House of Representative and Senate meet alternating years in "long" and "short" sessions. This year's session is a 30-day short one, but at just 60 days, even the long session isn't conducive to getting the job done. (Especially not when you account for ceremonies, mariachi performances, introductions of special guests and hundreds of "memorial" bills such as those that established the state cookie.)
"If you were designing a system to limit government's ability to tax, spend money, and respond to urgent year-round issues, you could not have done better," she writes.
Another problem is the pay scale for legislators.
Rather than earning even a paltry salary for their work, the state's elected senators and representatives get a "per diem" payment for each day of the session, and otherwise use campaign funds and favors from lobbyists to survive, and earn a living, during their time in Santa Fe. It's a recipe for corruption. Further, lots of lawmakers turn to lobbying when their elected positions are over, and their influences reverberate through the four-story Roundhouse.
Feldman also exposes the degree to which big-money interest groups control the quality of the sausage. Money from the fireworks industry as well as Big Pharma, Big Tobacco and the NRA, for example, can be directly tied to the way many lawmakers vote on bills that affect those industries.
Yet even with her criticism, Feldman seeks to credit the New Mexico Legislature with leading the charge for the nation in some respects on health reforms and marijuana. While a package of reforms not unlike Obamacare didn't make it through the chambers intact, many of the piecemeal law changes here in 2008 become part of the 2010 federal law, she says. That perspective puts the chorizo lab in a better light.
"Poor, remote and easily overlooked," she writes, "New Mexico again had been a key laboratory for democracy."
Call it the $70 million dollar mistake.
For most New Mexicans, March 16, 2013, was like any Saturday. But Tom Clifford, secretary of the state Department of Finance and Administration, was under pressure.
It was the last day of the legislative session. Lawmakers were in a mad-dash to send a budget to the governor's desk before the speaker rapped the gavel at the noon deadline.
If they didn't get the budget passed on time, lawmakers would have to reconvene for a special session—an upopular prospect among the 112 Roundhouse officials who don't draw a salary for their public service.
With about 30 minutes left before the deadline, the Senate sent the House of Representatives a complex bill that sought to shake up New Mexico's tax code in the name of job creation.
It included a reduction in the income tax rate corporations pay; more lucrative tax incentives to television shows that shoot in the state; and a tax-break benefitting manufacturers whose biggest sales are out-of-state.
To help pay for those provisions, the bill also phased out more than $140 million in cash the state gives to municipalities like Santa Fe each year to make up for revenue losses cities and counties incur because the state eliminated taxes on food and medical services in 2005. Those "hold harmless" payments from the state to municipalities are set to be phased out in 15 years, starting in 2015.
And this controversial bill—cobbled together in a lastminute deal—allows cities like Santa Fe to increase gross receipts taxes to make up for the revenue loss of that state cash.
Critics of the bill argue it forces regular New Mexicans to pay for tax breaks for corporations. Proponents counter it helps create private-sector jobs in a state that desperately needs them by giving corporations and film production companies more incentives to set up shop in New Mexico.
Confusion played out on the floor as House Speaker W Ken Martinez, D-Grants, prevented any debate on the bill. Typically legislation as weighty as this tax package goes through one or several committees in each chamber of the legislature before being sent to the floor for a debate and full vote. Lawmakers scrambled to understand the complicated bill as the clock wound down.
One source of comfort for House members on the floor that day: the finance chief, Clifford, announced the bill would have a positive impact on the state's checkbook over the next five years.
The House approved the bill, too. Some representatives who voted for the bill later confessed that they didn't even read it, and there's disagreement about whether it actually passed by the noon deadline.
And Clifford got the prediction wrong. Before a bill passes the legislature, it's given a "fiscal impact report" crafted by nonpartisan experts who predict the impact the legislation might have on the state's budget.
Clifford later told lawmakers he was reading from an analysis of an earlier version of the legislation.
The new fiscal impact report shows that bill could actually cost New Mexico $70 million over the next five years.
But as far as New Mexico's budget is concerned, $70 million isn't much—about 1 percent of its current general fund.
And this year, fiscal experts predicted that New Mexico's revenue—the amount of cash it brings in from taxpayers and other sources—will top $6 billion, about 5.5 percent over the prior year. That's about $292 million in extra revenue from fiscal year 2014 that lawmakers are able to allocate for fiscal year 2015.
The general fund represents a pool of money similar to a checking account that New Mexico government uses to finance services like public education, courts, health care and most of state government. About 72 percent of the cash in the general fund comes from taxes. Another 17 percent comes from revenues collected from energy royalties and another 11 percent is derived from interest on investments.
Both the Legislature and the governor's office have released budget proposals, and now it's the primary goal for the 37 Democrats and 33 Republicans in the House and 25 Democrats and 17 Republicans in the Senate who will begin deliberations next week.
So short sessions like this year's are designed primarily to deal with the state budget. But lawmakers are famous for procrastination. The first few days of the session will feature ceremonial issues and SFR predicts another rush to pass the budget at the end of the session.
"It really is stupid that we're trying to do this in 30 days," says Rep. Jerry Ortiz y Pino, D-Albuquerque. "There's not enough time."
Recently, lawmakers and the governor repeated the yawn-inducing ritual of throwing self-congratulatory press conferences touting their respective proposals to New Mexico's wonky political press corps.
From afar there's not much of a difference between the two proposals. The Republican governor recommends spending $6.07 billion, an increase state spending by 3 percent, or $178.6 million, from the current fiscal year.
The Legislative Finance Committee recommends spending $6.15 billion from the general fund, a 4.3 percent increase, or $253.5 million, from spending during the current fiscal year.
So the biggest debates won't likely be how much to spend, but how. Plus, a number of other issues that have little to do with the budget are likely to come up. SFR cut through the weeds to tell you what to expect:
Speaking of weeds: Ortiz y Pino plans to introduce a constitutional amendment to legalize the sale, possession and consumption of certain amounts of marijuana—similar to the new Colorado law. The strategy has failed in the past, but the thinking behind introducing a constitutional amendment—as opposed to a regular old bill—is that lawmakers don't need to get approval from the governor, who opposes the legalization of pot, in order for it to pass. If a majority of both chambers approve the proposal, the questions would be put to voters in the November general election. If it passes ballot muster, the legislature would craft rules in the 2015 session on how to implement the new rule. Ortiz y Pino says he needs to convince 22 senators and 36 representatives to vote for his proposal this session, and he's banking that a few Democrats won't back his effort. "Which means I'm going to need some Republican support, I believe," he says. He's optimistic, noting that Republicans in the legislature supported former GOP Gov. Gary Johnson's efforts to legalize the drug.
Politicians love to say education shouldn't be political—think of the kids!—but SFR predicts education will be on of the more polarizing issues of the session. Martinez education chief, Hannah Skandera, hasn't even been confirmed by the Senate since taking the job in 2011, which is why she still carries the title of secretary-designate of the Public Education Department. The Senate Rules Committee didn't even end up sending her nomination to the Senate floor. That means a confirmation vote could happen this time around, but it's not likely to be quick or easy.
Dueling budget plans also differ on education spending, which already makes up the single largest state budget category. Both the LFC and Martinez' proposals increase that amount of spending on public schools from the amount that's currently being spent (by $100 million in Martinez' proposal and by $142.9 million in the LFC proposal). Martinez' proposal infuses more money than the LFC into Skandera's PED rather than into a predetermined algorithm called the "school funding formula."
Her proposal of retaining third-graders who can't read proficiently is also likely to pop up.
New Mexico is pulling out of the recession slower than neighboring Southwest states. Martinez' budget plan in particular emphasizes economic development. Namely, the governor proposes using $5 million to expand the state's health care workforce "in response to state and federal policy changes"—hello, Obamacare—that will add 205,000 New Mexicans to the Medicaid rolls. Her plan creates incentives for primary care practitioners who are committed to working in rural New Mexico, which suffers from a lack of health care professionals, along with money for telehealth services for rural patients. The LFC plan calls for $1.5 million for the Economic Development Department, including funds for certified business incubators and the Job Training Incentive Program. Martinez puts $1.7 into the department, which includes $1.5 million for a job training program, and funding for two new international trade offices in Mexico City and Brazil. Both the LFC and govenor's budgets also suggest pay raises for public employees. Martinez wants to target certain workers such as police, district attorneys and teachers while the LFC proposed a small increase for all employees.
Rep. Miguel Garcia, D-Albuquerque, will again try to close the so-called gun show loophole that allows people to buy firearms at guns shows—or through other private sales—without background checks. The gun show loophole bill Garcia introduced during the 2013 session brought intense debate about Second Amendment and privacy rights and passed the House by a 43-26 margin, with one representative not voting. But it got to the Senate too late and died. The bill Garcia has proposed for this session would require the reporting of information regarding a person who has been "adjudicated as a mental defective or committed to a mental health institution" to the FBI but allows a person who is subject of a report to seek a "redetermination of mental condition and restoration of the right to receive or posses any firearm or ammunition." The bill imposes certain privacy safeguards on the background checking system.
In December, the 10 th Circuit Court of Appeals handed down an opinion in the case Republican Party of New Mexico v. [Gary] King, which considered a campaign statue capping donations at $5,000 to certain political committees that are not affiliated with a party or candidate. While contributions directly to candidates and parties may be regulated, according to the opinion, it's unconstitutional for the state to cap contributions to political committees that aren't coordinating expenditures with candidates or parties. Sen. Peter Wirth, D-Santa Fe, helped craft the bill that the appeals court partially struck down, and he's already filed a clarifying bill. Under the Citizens United decision by the US Supreme Court, the only basis for a government to cap contributions would be to limit quid pro quo corruption in which donors contribute to candidates in exchange for favorable treatment. That can't happen, the court's reasoning goes, if donors don't contribute directly to a candidate. Enter the political action committees referred to as "super PACs," which can accept unlimited cash as long as they're not coordinating with a candidate. Wirth's new bill imposes more reporting regulations on political committees.
Martinez appears to continue her push to repeal a decade-old law that allows undocumented immigrants to get a state drivers license. For the last three sessions the issue has been a contentious one between Martinez and Roundhouse Democrats. Meanwhile, Martinez continues to use the issue to raise money with donors and recently, on her Facebook page, the governor shared an Albuquerque Journal editorial supporting her effort. "New Mexicans strongly support repealing this bad law," the post reads, "and it's time that the legislature finally take action on it." Don't be surprised if Democratic lawmakers disagree.
An excerpt from Inside the New Mexico Senate
Just about any political science textbook will use two images to describe state legislatures. One is that of a sausage factory, where it is better to just appreciate the taste of the sausages (i.e., the laws) than know exactly how they were made and what went into them. The other is that of a laboratory—a laboratory of democracy where states try out various solutions to problems, which may later be adopted or modified on a national level.
Both ideas apply to New Mexico, with a local flavor, where the sausage is chorizo and the lab is a decidedly unscientific place where people are smudging up the equipment with their fingerprints, delaying the results and affecting the outcome in unforeseen ways. Sometimes the sausage needs to be recalled. I've often been frustrated by the process, the lack of professionalism, the control of special interests, and the slow pace of sausage making. But every time I've despaired, there have been reasons to hope.
The same Senate that resists an ethics commission and supports the culture based on lobbyists and contributions has risen to the occasion repeatedly to solve problems and even break new ground. Asked to describe the "finest hours" of the legislature in recent times, participants I interviewed for this book cited the Workers Compensation reforms, hammered out in a special session in 1991 with bipartisan cooperation under the leadership of former Sen. Marty Chavez, of Albuquerque, and former Rep. Fred Peralta, of Taos. Others cited gains made in the 1990s. Throughout the 1990s, lawmakers acted to expand access and insurance coverage for low-income children, people with disabilities and mental illness, and patients who needed protection from insurance companies. And at the end of the decade the legislature took the farsighted step of putting the proceeds of its tobacco settlement into a permanent fund, where it could grow and feed health programs for decades. In 1997 we led the nation with a "harm reduction" bill that allowed the distribution of clean needles to addicts to reduce the spread of AIDS. It's a measure that would have made the hair on the heads of Republican legislators in other states stand on end. But it was passed with only two dissenting votes in the New Mexico Senate.
Another key moment was the historic extraordinary session in 2004 when legislators joined together to veto Governor Johnson's budget. Calling themselves back to Santa Fe, they fulfilled the legislature's basic job: coming up with a responsible budget. This task has become more challenging as budgets have shrunk, needs have increased, and the partisan divide has widened. Just doing it every year, without a total breakdown such as we've seen in our nation's capital, makes every year the budget passes overwhelmingly its finest hour, according to some observers… The New Mexico legislature is like a little United Nations, says lobbyist Gary Kilpatric. "It's a deliberative body, which can be difficult with all diverse viewpoints and backgrounds," he says. "There's too little time and too little information. But as dysfunctional as it sometimes is, there is just no alternative."
For all its warts, Bill Fulginiti, a longtime lobbyist for the New Mexico Municipal League, says he wouldn't trade it for anything else. "It's the most open and accessible legislature I've ever seen," says Fulginiti, who used to lobby the Pennsylvania legislature in Harrisburg. "There, a bill wouldn't even get out of the filing cabinet—even if you represented a powerful group. You would have to beg to get it heard," he said.
Consider the alternative, both lobbyists say: a dictatorship—in this case an all-powerful governor—who might be more efficient but less deliberate and restrained.
So for now, I guess, we'll make do with our own chorizo lab. With a new economy shifting its foundations and new technology cracking open the windows to see what goes on there, the public can judge whether repairs are in order. For reformers like me who wants to restore public trust in representative democracy, there are hopeful signs on the horizon. Foremost among them is a new crop of citizen activists who are savvy in media mobilization and social networking and still believe democracy is more than an insider's game.