Too Close?

@JustinHorwath

It was a tough, dirty fight, and former Las Cruces District Attorney Amy Orlando knows exactly who was on her side. It's right there on the mailers accusing her opponent of siding with sex offenders over innocent children: "Paid for by Safer NM PAC."

Orlando, a Republican who was appointed to her seat in 2010 by then-newly elected Gov. Susana Martinez, faced a formidable challenger in this year's general election: Democrat Mark D'Antonio, a former federal law enforcement officer. D'Antonio took out a $28,000 loan from an unknown source and hit Orlando with mailers featuring her grinning face photo-shopped onto a female body getting a massage, claiming Orlando had taken two months off her duties to campaign.

"I feel that the attacks were very sexist in nature," Orlando tells SFR. She also raises questions about where D'Antonio got such a large loan.

But Crystal Shaw, a campaign consultant for D'Antonio, says the mailers D'Antonio sent out were all "fact-checked."

"We didn't have any PACs helping our campaign," she counters. Safer NM PAC, a super PAC formed late in the race, got all of its $60,000 in funding from two other political groups: Susana PAC, Martinez' political action committee, and the super PAC Reform New Mexico Now.

Technically, super PACs like Safer and Reform are supposed to be completely independent of candidates and their campaigns. That separation, supporters argue, eliminates the possibility of quid pro quo corruption—the "I'll scratch your back if you scratch mine" types of arrangements that have plagued New Mexico's political system in the past. But Orlando has ties to the groups behind Safer. In October, her campaign paid Jay McCleskey—a top Martinez adviser and the head of both Reform and Susana PAC—$94,000 for TV and radio campaign ads through his company, McCleskey Media Strategies.

"Jay was the one that made my commercial, and we bought the time," Orlando says.

In the aftermath of one of New Mexico's costliest elections, questions remain as to whether candidates can truly be independent of the super PACs that help them. But with state oversight limited to a few complaints and some routine sampling, a thorough investigation of PACs' links to candidates hardly seems forthcoming. All of which prompts a question that should resonate with every New Mexican: As unlimited money floods local elections, is corruption impossible—or easier than ever?

Conservative lawyer James Bopp holds the former view.

"When you're not coordinating what you're doing, you don't know. The [super PAC] doesn't know whether or not this is going to be helpful [for a candidate] actually…" he says. "You know, the independent spender wants to talk about abortion; the candidate doesn't want to talk about abortion. You know, there probably won't be much gratitude there!"

Not everyone is convinced. Fred Wertheimer, the founder of Washington, DC-based nonprofit Democracy 21, has argued for restricting the influence of money in politics since Watergate.

"We don't buy the argument that, when an individual gives $50 million in unlimited contributions to a group making independent expenditures, that the money does not have the ability to have corrupting influence over government decisions," he says.

Of course, the race for New Mexico's 3rd Judicial District Attorney wasn't quite on a $50 million scale. But PACs on both sides of the aisle raised significant sums in what once were low-budget races, with out-of-state donors sometimes dropping a quarter million dollars in a single day.

Had Orlando been elected, her ties to the Martinez administration—along with its PACs—would run deep. A longtime acquaintance of the governor, Orlando received donations of $10,000 from Susana PAC and $4,600 from Martinez' reelection campaign. Safer also spent all of its money to buy mailers from Red Tag Strategies, an Albuquerque consulting firm. Red Tag's phone number leads to the voicemail of Adam Feldman, a former Martinez administration official. (SFR left several messages, but Feldman did not return calls.) Even without the extra bump from Safer, which spent close to $56,000 in the race, Orlando spent more than double what D'Antonio did—$156,555 to his $75,023. D'Antonio narrowly won, by about 3,700 votes.

Shaw says it's "pretty unheard of" to see outside PAC spending in a local DA race, but that the mailers may have helped D'Antonio.Orlando attributes her loss to running in a Democratic-leaning county in a Democratic year.

In any case, super PACs like Safer played an integral role in races around the state—largely due to their ability to raise and spend unlimited amounts of money. For that, they have Bopp to thank. Following his victory in the US Supreme Court case that started all this—Citizens United v. FEC—Bopp's firm has led a nationwide crusade to break down state campaign finance laws. He currently represents the Republican Party of New Mexico in a federal case against the state's $5,000 limit on donations to super PACs. (On the other side is New Mexico Attorney General Gary King, whohas already raised $160,000 for his 2014 Democratic gubernatorial bid, and as such may benefit from a ruling in Bopp's favor.)

Bopp's argument hinges on the assumption that, because super PACs spend money independently of candidates, quid pro quo corruption cannot exist.

"It is impossible," he said last December, during arguments at the US District Court in New Mexico. "By spending all your money on independent expenditures, you cut the link."

But Tara Malloy, senior counsel for the Washington DC-based Campaign Legal Center, which supports campaign finance limits, says it's unclear just how independent super PACs really are.

"Certainly, that's been a concern given how tightly connected the independent—ostensibly independent—committees are to their candidates," Malloy says.

The new landscape of campaigning has wrought a tangled web of relationships. As SFR reported last week [news, Nov. 7: "How the Southwest Was Won"], both Republican and Democratic groups in New Mexico have close ties to various candidates, political advisers and other PACs.

The oversight, however, hasn't changed. Republican Secretary of State Dianna Duran is responsible for enforcing New Mexico's election laws by reviewing complaints and auditing 10 percent of all campaign finance reports. But critics say she's moved too slowly on complaints about Reform NM Now—a PAC run by McCleskey. During her 2010 campaign, Duran paid $100,000 to Lincoln Strategy Group LLC—McCleskey's former employer—for advertisements. Both Duran and Orlando were  also named as defendants on the RPNM case—but in December, their lawyer spoke before a federal judge in favor of Bopp's view.

State Rep. Brian Egolf, D-Santa Fe, says he'll work on a bill to allow individual voters to bypass Duran's office and take campaign finance complaints directly to court. He also wants to strengthen penalties on those who coordinate by barring them from campaigning in the next election or two.

But Bopp believes more spending is needed—and that, in any case, campaign finance reform is not "an important subject to the voters—to the average person."

"When you poll on, you know, like 15 issues, one of them's campaign finance reform, it's always the last one…" he says. "You ask, 'Do you like campaign spending?' They'll say no. 'Do you think politicians are corrupt?' They'll say yes. There's a lot of cynicism about politics and politicians. But it doesn't come from, you know, the laws."

Santa Fe Reporter