Free Speech Paradox

With great power comes great risk of ruining your reputation and image. That’s the message delivered by some New Mexico lawmakers last week: Passing House Bill 169 could upend political careers.

The bill, sponsored by freshman House Whip Reena Szczepanski, D-Santa Fe, aims to nix a portion of state law that requires those who file ethics complaints against lawmakers when the Legislature is not in session to stay quiet about their claims.

It passed the House last week on a surprisingly narrow margin—with several Democrats voting against it and a handful of Republicans in favor—and now faces an uncertain path through the state Senate. To move along the measure, lawmakers in the upper chamber must favor transparency when it comes to their own actions, which they’ve often chosen against doing.

Passing HB169 would also head off a court challenge from a lobbyist who accused a senator of sexual misconduct. Her claims of free speech violations are on pause in the First Judicial District Court while the Legislature debates Szczepanski’s bill.

Marianna Anaya, the lobbyist, accused state Sen. Daniel Ivey-Soto, D-Albuquerque in early 2022 of sexual harassment and assault, pushing the issue into public view. Ivey-Soto claimed in a September Albuquerque Journal op-ed that he’d been cleared in an interim Legislative Ethics Committee inquiry, but SFR obtained a copy of an independent counsel report that found probable cause he’d violated the Legislature’s anti-harassment policy.

Senate Republican leaders did not respond to requests for comment for this story, making it difficult to say how they’ll receive HB169. Based on last week’s House floor debate, concerns about besmirched political reputations are bipartisan.

Rep. Larry Scott, R-Hobbs, claimed legislative ethics complaints contain an “asymmetry” and that accused legislators have more at stake than an accuser who might bring a baseless claim.

“I see the potential for, if you’ll call it, political mischief, or weaponizing of these complaints,” Scott argued.

Szczepanski has tried to remind naysayers that accusers sign affidavits when filing legislative ethics complaints and argued they have plenty to lose themselves.

“I think we have to keep in mind the fairness that we need to extend to the members of the public as they confront the high bar to bring complaints in this process,” Szczepanski told the full House Feb. 15. “And know that if they’re doing so, that they are hopefully seeking justice and fairness in the same way that we are seeking justice and fairness.”

Eight Democrats voted against the bill—including Reps. Patricia Lundstrom of Gallup and Patricia Roybal Caballero of Albuquerque—and four Republicans voted for it. The final House vote was 39-28, meaning six additional dissenting votes would have killed Szczepanski’s bill.

Rep. James Townsend, R-Artesia, told his colleagues he’s lost trust in the State Ethics Commission, which would not be impacted by the bill. Echoing some Senate Republicans from a previous hearing, Townsend bemoaned the leak to SFR of the report in the Ivey-Soto case.

“We’ve had charges where things have been leaked, which was against our law, against our Ethics Commission and there wasn’t a darn thing done,” Townsend said.

But, Townsend added, he thinks lawmakers should be held to “high, high, high standards” and that if “someone steps out of line, we ought to boot their fanny out of here and start over.”

It wasn’t just Republicans who shared their anxiety over damaged reputations, especially in instances in which allegations prove untrue.

Democratic Rep. Dayan Hochman-Vigil of Albuquerque cited her own experience facing an ethics complaint. She said her name was dragged through the mud after someone filed a sworn affidavit alleging Hochman-Vigil’s professional relationships within the New Mexico Spaceport violated state ethics laws. Hochman-Vigil, who ultimately voted for HB169, said she’s still working to rebuild her political reputation.

“What happens to people like me?” she asked rhetorically. “How am I supposed to rehabilitate my image? How am I supposed to feel safe?”

The Legislature has struggled to balance the rights of constituents against its own self-interest. It took the same body years to approve a state Ethics Commission, with many legislators expressing concerns that complaints would tank their political careers. Lawmakers even exempted their own correspondences from the state’s Inspection of Public Records Act, although some legislators comply.

One potential surprise has emerged on the Senate side.

Ivey-Soto tells SFR he plans to vote in favor of HB169.

“There never should have been a gag provision on the complainant,” Ivey-Soto says in a text message.

Unlike with provisions for the State Ethics Commission, state law required Anaya to stay tight-lipped about her complaint while Ivey-Soto was free to talk about it as much as he wanted. And he did.

The Albuquerque senator, now stripped of his leadership positions, says the law needs to change.

“The confidentiality should be on the staff and the investigative body to allow them to do their work, just like in the [ethics commission] and just like a grand jury,” he says.

Ironically, Anaya had more freedom to share her allegations before she filed a complaint with the Interim Legislative Ethics Committee.

Anaya filed a petition in state court last fall, claiming the law that kept her silent violates the state constitution’s free speech provisions. Weeks before the session started, Anaya’s lawyer and a contract attorney for the Legislature agreed to pause the case and give lawmakers a chance to change the law. If HB169 fails, the court case will likely move forward.

While Senate Republican support is unclear, Chris Nordstrum, a spokesman for Senate Democrats, told SFR late last year that Majority Leader Peter Wirth, D-Santa Fe, was “all in for getting the confidentiality statute changed during session.”