If government is truly to be for, by and of the people, then we should know what’s going on—and several lawmakers are trying to make sure that happens.
In terms of open government, it’s been a rocky year for Gov. Susana Martinez. Last summer, SFR and other news outlets reported that her administration had been using private email accounts to conduct official state business [cover story, Dec. 19, 2012: “The Year in Closed Government”].
The administration has remained silent about the content of those emails, maintaining they were stolen, and many state lawmakers have avoided the issue of using private email for public business.
“I think a lot of it’s just political,” says state Rep. Jim Smith, R-Bernalillo. But Smith, like many state lawmakers, doesn’t even use his official government email account—making reform a thorny prospect.
Under most circumstances, emails that concern public business are considered public records. Anyone who wants to scrutinize how government decisions are made can request those emails under the state’s Inspection of Public Records Act.
Yet there’s no law requiring public officials to conduct public business over official, government-issued email accounts. New Mexico Attorney General Gary King, a Democrat whose office enforces IPRA, recently took the stance that if a public official is conducting official business on private email, those emails are discoverable under IPRA.
Just in case, the New Mexico Foundation for Open Government, a nonprofit that lobbies for transparency in government, recently issued a statement urging lawmakers to use official government email accounts when conducting public business. FOG came under fire last summer when Pat Rogers, one of its board members, surfaced as a central figure in the email scandal, emailing top administration officials on their private accounts in an apparent effort to circumvent the same public-records laws FOG supports. After SFR reported on his role in the emails [news, July 18: “A Higher Power”], Rogers resigned from FOG’s board.
“Because storing public records in private email accounts can make it difficult for records custodians to access those records,” FOG’s statement reads, “and because records custodians’ conscientious efforts to retrieve public records from such accounts will inevitably impinge on public officials’ legitimate privacy interests, FOG strongly recommends that all emails related to public business are sent using official accounts.”
Last week, FOG’s executive director, Gwyneth Doland, could not name any specific email-related bills that FOG plans to endorse.
But her organization is behind several other pro-transparency efforts, including Smith’s bill requiring public bodies to give public notice of their meetings at least 72 hours ahead of time. (Currently, they’re only required to post a 24-hour notice.)
Smith says his legislation is an important step in allowing regular New Mexicans access to their government. He’s introduced the bill twice before, but says it hasn’t had time to make it through the Legislature. This time, however, he feels “pretty confident.”
As for the private email issue, Smith says he’d be happy to sit down with anybody to work on legislation addressing it.
But he’s not sold on the concept that lawmakers should maintain public email accounts.
“We’re a part-time Legislature, and most everybody that I know maintains private emails—and we don’t sign contracts and that sort of stuff,” he says.
Perhaps even thornier than the email issue is campaign finance—the millions of dollars that largely determine which candidates win and lose.
The entire foundation of campaign finance law shifted in 2010, after the US Supreme Court declared, in Citizens United v. Federal Election Commission, that organizations and individuals can spend unlimited amounts of cash in elections—so long as they don’t coordinate those expenditures with candidates.
Last November’s elections provided a case-in-point for the gray area between coordination and independence. In New Mexico, several political consultants took advantage of the murky boundaries, consulting for legislative campaigns while also running super PACs—political action committees free from contribution limits because they operate independently of candidates.
In 2009, state Sen. Peter Wirth, D-Santa Fe, introduced a bill establishing New Mexico’s first-ever contribution limits. But he’s seen part of that law decimated in a federal case brought by the New Mexico Republican Party, which argued that New Mexico’s contribution limits to candidates, parties and PACs should be knocked down in light of Citizens United. A US District Court struck down the super PAC limits last year, and the 10th Circuit Appeals Court is set to rule on the case soon.
“This has been incredibly frustrating, to all of the sudden go back to a world where you can have unlimited contributions,” Wirth says.
Meanwhile, he hopes to etch out a clearer definition of coordination, at least on the state level. His bill, SB 15, also seeks more transparency for super PACs after what Wirth calls a “brutal” election year. That bill would also make some “constitutional fixes” to New Mexico’s campaign finance law, parts of which could be deemed unconstitutional after Citizens United. One example: political action committees must currently register with the New Mexico Secretary of State’s office within 10 days of raising or spending $500. Wirth’s bill would increase that limit to $3,000, a provision that would put the law in compliance, he says.
Common Cause New Mexico is working with Wirth on that bill, as well as another initiative he’s pushing to make fixes to the state laws governing public financing of elections.
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